Judging the judges: liberals need a new constitutional vision to guide their decisions. Cass Sunstein may have it.

• Author: Pomper, Stephen
• Position: Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America - Book Review

At this summer's convention of the American Constitution Society (a young organization of left-of-center lawyers that serves as a counterweight to the well-established right-of-center Federalist Society), a breakfast panel debated the question: "Is there a Progressive Constitution?"

If the choice of topic signaled a certain defensiveness, there was good enough reason. Today's liberal lawyers are groping around in something of a constitutional fog. Yes, there is a "Progressive Constitution," in the sense that there are lines of cases dating back to the New Deal era that interpret the Constitution in a manner well-aligned with liberal policy preferences. But is there a coherent method or a philosophy that ties those cases together?

During the Warren Court era, the legal left argued that we have a living Constitution that can be flexibly implemented by beneficent judges making occasionally heroic doctrinal leaps. That approach was never satisfyingly principled, however, and it's more or less useless in today's world--where constitutional law is already synched up with liberal policy in areas like civil and reproductive rights, where Republican appointees increasingly control the federal bench, and where any doctrinal leaps that happen are likely to take the law in what liberals would consider the wrong direction.

To make matters worse, the conservative legal movement has no such predicament: For decades now, conservative thinkers have fine tuned a set of doctrines and principles that can help translate into law conservative policy preferences on everything from abortion to the presence of religion in public life. All that remains is for the president to appoint Supreme Court justices who are willing to do the job. And with the ailing Justice William Rehnquist and the aging Justice John-Paul Stevens looking like good candidates to join Justice Sandra Day O'Connor in retirement before 2008, he may well have the opportunity to do that. Given that liberals are likely to have scant control over this process (Senate filibuster threats notwithstanding), liberal Court-watchers have had few options other than to look hopefully at the fact that over the last half century many Republican-appointed justices (most recently O'Connor and Kennedy) have tended to drift left during their time on the Court. Indeed, when O'Connor announced her retirement at the beginning of the summer, the one consistent theme in an otherwise discombobulated Democratic response, was that it would be great if President Bush nominated someone just like her. But even that wish was somewhat ill formed. After all, what exactly does "just like Justice O'Connor" mean in terms of judicial philosophy? And what does it say about how Democrats should evaluate John Roberts or any subsequent Bush nominations to the Court? And what kind of guidance does it give about how the Democrats themselves ought to approach judicial appointments when they are back in power?

Folks who are trying to muddle through these difficult questions would be well advised to consult Cass Sunstein's slender new book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. Try not to get hung up...