Tipping the scale: President Bush picks judges based on ideology--so why shouldn't senators reject them for it?

• Author: Johnsen, Dawn

IN 1993, U.S. DISTRICT COURT JUDGE D. Brooks Smith gave a speech to the Pittsburgh chapter of the conservative Federalist Society in which he promoted a strikingly narrow interpretation of the Constitution. Smith declared that "[t]he Framers' primary, if not sole" intent in vesting in Congress the power to regulate interstate commerce through the Commerce Clause was "to permit the government to eliminate trade barriers." And he went on to suggest that this narrow original intent should guide how it is interpreted today.

While it may sound like a point of legal arcana, Smith's view, taken to its logical conclusion, would contradict: more than 50 years of U.S. Supreme Court case law, including landmark decisions that upheld the 1964 Civil Rights Act and provide the basis for many modern federal human rights, environmental, and public safety laws. Perhaps not surprisingly, Smith's judicial rulings have proven just as controversial since President Ronald Reagan appointed him to the court in 1988, evoking harsh criticism for, among other things, failing to protect individual rights.

Smith's ideas may be extreme, but they are shared by a cadre of judges whom Presidents Reagan and George H.W. Bush placed on the federal bench. President George W. Bush is now trying to elevate some of these same judges from the lower district courts to the higher appellate courts. In fact, Bush has nominated Judge Smith for a seat on the U.S. Court of Appeals for the Third Circuit, whose decisions can only be reversed by the Supreme Court, currently controlled by a conservative majority.

Smith's nomination, and many others pending before the Senate, presents a centuries-old question: What role should a judicial nominee's legal philosophy and views play as the Senate fulfills its constitutional role in confirming federal judges? How troubling must a senator find a nominee's views before casting a negative vote?

To hear Republicans tell it, senators shouldn't take into account such factors as the details of one's judicial philosophy or views on particular legal issues. (If they do so, critics accuse them of "Borking.") Former Reagan and Bush administration officials Douglas Kmiec and C. Boyden Gray both testified to this effect last year before a subcommittee of the Senate Judiciary Committee. Gray put it most succinctly: "Should ideology matter? I can answer in one word: No."

Of course, ideology was precisely the reason GOP senators often gave for blocking President Bill Clintons nominees, declaring them to be too "liberal" It is an odd sort of hypocrisy: President Bush recently renewed his pledge to continue to appoint "conservative" judges in the model 0f Justices Antonin Scalia and Clarence Thomas. What at least some Republicans seem to have in mind is a constitutional double standard that would allow only a Republican president to consider the views of judicial nominees--and not a Democrat-controlled Senate.

Democratic senators are looking closely at some of President Bush's most controversial nominees, with mixed results. On one hand, they united in opposing the elevation of Judge Charles W. Pickering to the Fifth Circuit. On the other hand, after close questioning and examination, Democrats on the Senate Judiciary Committee split on Judge Smith, with three voting in his favor after he largely disavowed the implications of his Federalist Society speech on the Commerce Clause.

As senators consider the role nominees' legal philosophy and views ought to play in their confirmation, they should keep one important factor in mind: the concerted strategy developed by Republicans during the Reagan administration to radically remake the federal judiciary based on conservative ideology. This is a familiar story to many people. I, for one, worked at progressive public-interest organizations during the Reagan and Bush administrations, and later in the Justice Department during the Clinton administration. But only recently, while studying some Reagan-era Department of Justice publications, did I come to appreciate the extraordinary extent to which the Reagan administration in particular devised the blueprint and laid the foundation for the federal judiciary's current activism and ideological conservatism.

Several documents prepared by the Reagan Department of Justice in 1988--the same year Judge Smith was appointed to the bench--flatly contradict the current Republican line about disregarding ideology. Largely unknown and unexamined by the public before now, these...