Outside the Beltway

Stacking the Courts with Right Wing Nutjobs

James Joyner · Thursday, May 18, 2006 · 3 comments

Dahlia Lithwick is foaming at the mouth over the prospect of President Bush appointing “nut job” judges to the bench to placate the Radical Right.

What we’re witnessing now are the early signs of flirtation that will lead the president to an inevitable embrace of his conservative base. And they have a message for him, too: Get naked now.

Social conservatives are increasingly furious that Bush’s war and his tax cuts have taken priority over his campaign promises to remake the federal bench. These groups don’t much care about the president; they just think the next few months may be their last chance to cram a huge boatload of nut jobs into the courts before the doors to the White House and Congress slam shut.

Surely the White House has learned this one thing from the Harriet Miers fiasco: You cannot mollify wary social conservatives with a middle-of-the-road nominee. The last time the Bush administration tried that stunt, they pulled back a charred lump of Harriet. So, what’s wrong with the administration’s early gestures toward starting a war over the judiciary? For one thing, they can’t possibly deliver what they’ve promised. For another, it’s suddenly a buyer’s market, and the groups to which they are pandering no longer want what the White House is selling. They want better goods: more hard core, more red meat. Less pandering to sex, race, and big business, and more pandering to ideological purity.

[…]

Giddy at having taken Harriet Miers out of the running for a Supreme Court seat, conservative groups no longer need to trust Bush’s judicial picks. They want to seat their own.

And these groups don’t want moderates, or minimalists, or mere callers of “balls and strikes.” If, as they say, they represent the “values voters,” they want only fire-breathing Roy Moore types who will reflexively strike down gay-rights legislation, ban abortion outright, and reinstate public prayer. And those folks may not be the Bush administration’s dream judges on the issues it cares about most: the war on terror and the interests of big business.

I don’t doubt that there are “groups” out there who want “fire-breathing Roy Moore types” on the bench. But where is the evidence that such appointees are forthcoming? I can’t think of anyone even in the Moore ballpark that’s been appointed, let alone confirmed. [Update: I hasten to add, that’s a good thing.]

While it is an uphill fight once a meme sets in, the opposition to Harriet Miers–which I joined–was not about ideology but about credentials. Indeed, both John Roberts and Samuel Alito are almost certainly less ideologically conservative than Miers, who most of us thought a Bush crony only minimally qualified for the bench.

As Andrew Hyman writes a Confirm Them,

Calling Judge Terrence Boyle a “nut job” and a “wing nut” and a “judicial monkey” and a “fire breather” is absurd. Such conservatives don’t get rated “well qualified” by the ABA, nor would they be supported at this site.

Indeed, as Mark Tapscott notes, we’re most likely to get the likes of Alberto Gonzalez if Bush gets another opening on SCOTUS. That’ll especially be true if the Democrats regain or even narrow the gap in the Senate in the November elections.

Hugh Hewitt, who was a loyal Miers supporter, makes a solid argument as to why it matters who’s appointing our federal judges. Both he and Lithwick are right in focusing on the importance of the bench, given the scope of their power.

Lithwick is wrong, though, in her premise that “stacking the bench” is a bad thing. It is the prerogative of the elected president, with the advice and consent of the Senate, to shape the judiciary. Jimmy Carter, who served only one term and did not get the opportunity to appoint a single Supreme Court Justice, nonetheless “stacked” the lower courts when Congress radically increased the number of judgeships during his watch. Bill Clinton greatly shaped the courts during his two terms, despite a Republican Congress during the last six years. Likewise, George W. Bush, with a Republican Congress during all but a short period, has shifted the courts back to the right.

This is natural and good. Jeffrey Rosen has argued that the courts are our most democratic branch. In a book by that name, he argues,

[F]rom the days of John Marshall right up to the present, the federal courts by and large have reflected the opinions of the mainstream. More important, he argues that the Supreme Court is most successful when it defers to the constitutional views of the American people, as represented most notably by Congress and the Presidency. And on the rare occasion when they departed from the consensus, the result has often been a disaster.

To illustrate, Rosen provides a penetrating look at some of the most important Supreme Court cases in American history–cases involving racial equality, affirmative action, abortion, gay rights and gay marriage, the right to die, electoral disputes, and civil liberties in wartime. Rosen shows that the most notorious constitutional decisions in American history–the ones that have been most strenuously criticized, such as Dred Scott or Roe v. Wade–have gone against mainstream opinion. By contrast, the most successful decisions–from Marbury v. Madison to Brown v. Board of Education–have
avoided imposing constitutional principles over the wishes of the people. Rosen concludes that the judiciary works best when it identifies the constitutional principles accepted by a majority of Americans, and enforces them unequivocally as fundamental law.

While I have strong quibbles with some of that analysis, I agree with Rosen on the desirability of the Court weighing matters in light of the social consensus. Given that the courts, especially SCOTUS, are inherently political, it’s best that they follow the election returns, albeit slowly. The alternative, that they mirror the faculty lounges at our premier law schools, is rather unsettling.