HOW TO CROSS-EXAMINE BUSH'S CONSERVATIVE JUDICIAL NOMINEES:
Why the Democratic Minority Should Use Upcoming Confirmation Hearings As A Platform For A New Constitutional Vision

By EDWARD LAZARUS

Thursday, Dec. 12, 2002

The Republican-controlled Senate is now poised to confirm President Bush's roster of highly conservative nominees to the federal courts of appeals. If confirmed, these nominees will tilt all 13 of those courts decisively to the right. The soul of the federal judiciary thus hangs in the balance.

Democrats, stuck in the minority, are already resigning themselves to a desperate rear guard action. Yet in doing so, they may be ignoring a crucial opportunity that arises from the loss of Senate control. This is one cloud that actually does have a silver lining.

Like it or not, the Senate Judiciary Committee is now going to conduct a slew of confirmation hearings - and those hearings present a vital platform for engaging the Republicans in a meaningful debate over the nation's most basic legal and moral tenets.

The Price of Democratic Delay: The Inability to Present a Judicial Vision

This strategy permitted, even encouraged, the Democrats to abdicate their own responsibility to present a compelling vision of the courts and the Constitution. And conversely, it let the conservative vision, now ascendant on the Supreme Court, go largely unchallenged.

Furthermore, on those few occasions when Democrats have chosen to take a stand, they unwisely decidedly to do so on the weakest possible battle ground. Understanding that Roe v. Wade and the constitutional right to reproductive choice are important to many Americans, they have staked their credibility on that decision, and on a broad view of the non-textual constitutional right to privacy. That's a problem because (as I have explained in a previous column), Roe, while morally attractive, has little foundation in constitutional text, history, or legal reasoning for that matter.

Setting aside the issue of whether a right to reproductive choice may defended on constitutional theories other than the one espoused in Roe (on equal protection grounds, for example), the Democrats' strategy of emphasizing Roe - one of the Court's weakest, most apparently results-driven liberal precedents - played right into the conservative's main indictment of liberal judges: that they simply substitute their preferred policy preferences for the actual meaning of the Constitution.

The Need to Present a Strong, Democratic Constitutional View

On a deeper level, too, emphasizing Roe to the exclusion of other legal decisions and theories has been a mistake, because Roe itself is not a vision. Rather, it is the expression of a single, strong pro-choice moral view.

The least defensible liberal decisions can usually be faulted for presenting this type of ad hoc view. Beside Roe, there is, for instance, Furman v. Georgia - which struck down the death penalty on what were really moral, and not constitutional, grounds.

Conservative politicians have successfully put forth their vision of the Constitution - it is libertarian in that it is supportive of gun rights and states' rights, and socially conservative in that it allows a close relationship between church and state. Meanwhile, Democratic politicians have not put forth a sufficiently strong competing vision.

Yet that vision already exists, and need only be communicated to the public. It is reflected in the work of leading constitutional scholars (including several who write for this site). It is a progressive vision of the Constitution - one that embraces democratic principles of governance, a strong federal role in solving national problems, and that presents a broad but responsible view of civil rights and civil liberties.

This vision, moreover, is not dependent on ad hoc notions of "fairness" or "morality" - the Achilles' heel of Roe and Furman. Instead, this vision reflects a rigorous analysis of constitutional text, history, and democratic theory. And using these methods, it champions federal power over the rights of states, and gives real life to the post-Civil War constitutional promises of equality, due process, and the privileges and immunities of citizenship. Accordingly, it is potentially a powerful weapon in favor of Democrats' constitutional views - powerful because it transcends politics, rather than simply taking part in it (as Roe did).

Areas on Which Conservative Nominees Should Be Closely Questioned

With that in mind, here are a few questions for Bush's conservative nominees:

President Bush says that he is nominating so-called "strict constructionists" (not liberal activists) to be federal judges. But isn't it true that it was the very same "strict constructions" school of judging that opposed the landmark desegregation decision in Brown v. Board of Education? And didn't the strict constructionist school also fight such bedrock legal principles as one-person/one-vote, and the fundamental right to be represented by counsel? Why should we confirm a nominee with this philosophical pedigree, when it has led to some of the worst injustice our country has ever seen?

The conservative justices, in their elevation of the principle of states' rights, have ruled that the federal government has no power to "commandeer" state officials to implement federal laws and policies. But don't these rulings mean, as they seem to, that - for example - the federal government could not require state health officials to administer smallpox vaccines in the face of a potential terrorist threat?

The conservative justices have ruled that states can't be sued for violations of numerous federal laws. But suppose a vaccine that cures AIDS is invented and patented, and a state university violates the patent and mass-produces the vaccine? Under these rulings, is it immune for suit for patent infringement? And if so, what is the incentive to ever produce vaccines or pharmaceuticals in the future?

The Supreme Court has ruled that Congress has no power to grant individuals greater freedom from governmental interference with religious practice than the amount of freedom recognized by the Supreme Court. Everyone can agree that the Supreme Court can establish a constitutional minimum for the protection of civil liberties. But do you agree that Congress has no right to give extra protection to civil liberties if it so chooses?

Thanks to DNA evidence, we now know that dozens if not hundreds of inmates on death row did not commit the crimes for which they were convicted and sentenced to die. Nonetheless, the conservative justices on the Supreme Court have refused to agree that the Constitution prohibits the government from executing someone who is innocent. Do you think that it is unconstitutional to execute the innocent?

Ordinarily, the conservative justices insist on deferring to state courts on issues that primarily involve state law - yet in Bush v. Gore, they overruled the Florida Supreme Court's interpretation of Florida election law. Aren't you troubled by the apparent willingness of the conservatives to abandon their favored legal principles when those principles proved politically inconvenient?

Conservatives supposedly like to defer to the political process rather than yield power to unelected, life-tenured judges. Yet the Supreme Court under Chief Justice Rehnquist has struck down all or part of more than 30 federal statutes. How do you reconcile this supposed principle with the actual results of conservative legal decisions?

The Rehnquist Court Is As Vulnerable As the Warren Court -- Perhaps More So

Such questions are just the tip of the iceberg. But they make the point: Rehnquist Court rulings have very disturbing consequences for our country's ability to solve its current problems, from the threat of terrorism, to corporate scandals, and still preserve the civil liberties and principles of which we are so rightly proud.

Conservatives declared war on the Warren Court's approach to the Constitution two generations ago, targeting the Warren Court for being overly political. It's past time for the liberals to join the battle in kind, for the very same complaint can easily be lodged against the Rehnquist Court as well.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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