Fueling the Fight

PRESIDENT BUSH has a legitimate beef against Senate Democrats over the treatment of some of his judicial nominations. Democrats have kept more than a few waiting for unreasonably long periods. They have distorted nominees' records, and they have filibustered nominees when they could not muster the votes to defeat them. While the White House was initially frustrated by these tactics, it has apparently learned -- with a presidential election year coming up -- to love the pain. A good judicial nomination fight -- or two or three or four -- energizes the GOP electoral base and lets the president wax wounded about Democratic obstruction. Over the past year, Mr. Bush has begun energetically fueling the fire by sending the Senate nominees seemingly calculated to provoke Democratic ire.

The latest of these is California Supreme Court Justice Janice Rogers Brown, whom Mr. Bush has nominated to the U.S. Court of Appeals for the District of Columbia and who last week had a hearing before the Senate Judiciary Committee. The D.C. Circuit is one of the courts where nominations have been especially controversial, with both parties rightly indignant about the blocking of qualified candidates in recent years. Given the history, we had hoped Mr. Bush would seek consensus nominees above partisan rancor -- people about whom all sides could be enthusiastic. To put it mildly, Justice Brown is not what we had in mind.

Justice Brown is one of the most unapologetically ideological nominees of either party in many years. In speeches, she has openly embraced the Supreme Court's so-called "Lochner" era, during which the justices struck down numerous worker protection laws on grounds that they violated the supposed right of free contract. Across the spectrum of constitutional law scholarship, there are few points of greater consensus than that this period is a blot on the Supreme Court's history. The very word "Lochner" -- named for the 1905 case that forged the doctrine -- has come to be used as a pejorative shorthand for judicial usurpation of legislative authority. Yet Justice Brown has insisted that without such usurpation, "a democracy is inevitably transformed into a Kleptocracy -- a license to steal, a warrant for oppression."

At her hearing, Justice Brown beat something of a retreat from these statements and from others as well. Her words have been misunderstood, she said; she doesn't really support Lochner-type rulings. Her speeches, she said, are efforts to be provocative; senators should look at her judicial work to see what kind of federal judge she would be. This might be a reasonable answer, except that her speeches are quite clear in their meaning -- and her judicial work reflects exactly the kind of property-rights adventurism you would expect from their author. Her colleagues on California's high court certainly understand where she's coming from. In one case they rebuked her for seeking to impose her "personal theory of political economy on the people of a democratic state."

Mr. Bush cannot reasonably expect Democratic senators to support such a nominee. Given their propensity to rail against judicial activism, in fact, the wonder is that so many Republicans seem willing to back a candidate who -- at least until her hearing -- made no secret of her yearning for a judiciary "audacious enough to invoke higher law." If the judicial nomination wars are ever to abate, it will be because a president reaches out to the other side and asks for apolitical consideration of apolitical nominees. As long as the president so nakedly plays to his own base, he courts exactly the obstruction of which he complains.