This Fight's About More Than Judgeships

By Lincoln Caplan
Sunday, May 8, 2005

Republicans in Washington have long been fuming about the federal judiciary, but something snapped with the recent Terri Schiavo case. Emboldened, they charged the judges with engaging in activism so outrageous as to warrant impeachment.

And then, surprisingly, one of the men in black fired back. In the final denial of a request to rehear the case, Judge Stanley F. Birch Jr. of the U.S. Court of Appeals for the 11th Circuit declared that President Bush and the Congress had "acted in a manner demonstrably at odds with our founding fathers' blueprint for the governance of a free people -- our Constitution." They did so, he wrote, by infringing on "the independence of the judiciary," by seeking to force the courts to exercise their authority "in a manner repugnant to the text, structure, and traditions" of the nation's basic law, and by violating "the fundamental principles of separation of powers."

Birch has exceptional standing to draw this line in the sand. Appointed by President Bush's father, he is a 15-year veteran of the Court of Appeals and a conservative in line to become the 11th Circuit's next chief judge. Last year he voted to uphold a Florida law barring homosexuals from adopting children. Birch emphasized that to him the law was "misguided," but that the state legislature had the power to enact it. The question was one of legislative policy, he stated, not constitutional law.

In a question-and-answer interview published on the legal blog How Appealing, however, Birch made clear that if he's a partisan of any sort, it's on behalf of the federal judiciary, left and center as well as right. His most vehement answer was about his "least favorite aspects" of being a judge. They included being "frustrated with the manner in which we are treated by Congress."

Birch's is the sort of anger that federal judges increasingly express. Some substantive clashes have been nasty. In the long struggle between Congress and the courts over proper sentencing of criminals, for example, a mix of insults delivered by Congress in the process of lawmaking and creating inflexible restrictions on judicial decisions has unified judges across the ideological spectrum. John Martin, a former District Court judge in the Southern District of New York, lamented Congress's "disdain" for the judiciary. These battles in the trenches suggest how pervasive and damaging are the effects of a conflict over the courts' role in American democracy that has been roiling for a generation.

Twenty years ago, Reagan administration Attorney General Edwin Meese launched the hostilities when he gave a series of major speeches to the American Bar Association and other groups proposing a "restoration of fundamental constitutional values." Key to those values, he said, was the balance of power among the three branches of the federal government. The most radical element of Meese's proposal was an attack on the concept of judicial review, a tenet of the American legal system since 1803. To Meese, the Supreme Court's interpretations of the Constitution did "not establish a 'supreme Law of the Land.' " He asserted that officials of the Reagan administration were free to rely on their own views as authority for the meaning of the law.

Meese was reacting to the expansion of judicial authority in the 1960s and 1970s under Chief Justices Earl Warren and Warren Burger that had agitated the right, and his attack was supported by serious conservative scholars. In his 1985 book "The Federal Courts," Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit argued that it would be "restrained" of the court to overturn the totemic ruling in which, just 14 years after the birth of the Republic, Chief Justice John Marshall declared on behalf of a unanimous bench, "It is emphatically the province and the duty of the judicial department to say what the law is." Posner was well aware of the far-reaching nature of his argument. He wrote that "A decision overruling Marbury v. Madison would be pretty wild stuff, but it would be self-restrained in my terminology because it would reduce the power of the federal courts vis-a-vis the other organs of government."

Robert Bork, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, was the best-known critic of the "Imperial Judiciary," as he called it. His underlying concern was the fate of American democracy. He held that judicial review undermined the ultimate freedom of the majority to govern, and that to avoid the "tyranny of the minority," the Supreme Court had to defer to the will of the political branches unless the Constitution clearly said otherwise. In 1987, after a historic confirmation battle, the Democratic-controlled Senate roundly rejected Bork for a Supreme Court seat. In part, the defeat signaled a rejection of Bork's narrow view of the judiciary's role. But the defeat made Bork a martyr for the cause heralded by Meese and Posner, and a hero to the political movement that embraced his rhetoric and is now triumphant.

Cut to 2005, and the most talked-about idea among progressive con-law scholars is "popular constitutionalism." A moderate expression of this new idea, offered by Stanford Law School's dean, Larry Kramer, is that the political branches of government have the authority to decide the meaning of the Constitution, as long as they don't disregard a specific precedent of the Supreme Court. An extreme version comes from Georgetown Law School's Mark Tushnet, who says that judicial review has produced as many bad decisions as good ones. Therefore, he advises, federal courts should not review decisions of the political branches at all. Tushnet's purpose is the same as Kramer's: to encourage popular deliberation about the fundamental issues of constitutional law.

A cousin to the idea of popular constitutionalism is judicial minimalism, the notion from the University of Chicago's Cass Sunstein that the Supreme Court should resolve the legal issues it reviews as narrowly as possible. By avoiding engagement with broad questions, Sunstein argues, the justices would encourage officials in the democratically chosen branches to deliberate about problems and to come up themselves with answers that satisfy voters.

While it's not surprising that provocative ideas come from first-rate thinkers like Kramer, Tushnet and Sunstein, it's startling that all three are leaders of the legal left. But their ideas are a reflection of the legal right's dominance and a reaction to the success of the Republican movement that now controls all three branches of the federal government, including the judiciary. The current Supreme Court has a right and a center, but no left, and seven of the nine justices were appointed by Republicans. In addition, GOP appointees make up the majority on 10 of the 13 federal appeals courts.

With many of those appointees likely to be influential for years to come, thinkers on the left have joined those on the right -- the political right, that is, which has repeatedly rallied its base with attacks on the judiciary -- in endorsing a cutback in the role of judges. Meanwhile the legal right is increasingly divided between those who practice what the politicians preach and others keen to pursue their own agendas through the courts. Some, like Stanley Birch, adhere to traditional concepts of judicial restraint. Others, including Justices Antonin Scalia and Clarence Thomas, in the name of applying what they regard as the original intent of the Constitution's framers, have no compunction about aggressively striking down acts of Congress in ways that conservatives once called activist.

There are others on the right more activist still, and avowedly so. Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia gave a name to the concept of the "Constitution-in-exile," the interpretation of our fundamental law that dominated legal thinking 75 years ago, before the Supreme Court embraced the New Deal. Recent attention to those who favor a return to this "Constitution" as a potent movement has stirred denials that such a movement exists. Whatever they call themselves, though, there are scholars, lawyers and judges promoting legal ideas that would jeopardize the Federal Reserve Board, the Social Security program, environmental protection and many other safeguards of modern governance -- with judicial activism recognized as a tool necessary for limiting the power of the state and federal governments.

The current Senate drama over whether to do away with the filibuster in considering judicial nominees is part of this debate about the proper role of the courts in our democracy and, really, about the fundamentals of our constitutional system. The Republican majority is moving toward banning the filibuster because members believe the president's 2004 reelection gave him a mandate to fill the bench with judges who share his legal philosophy. They're convinced that the Democrats shouldn't be able to block a would-be judge on ideological grounds. The Democratic minority is defending the filibuster because, as seldom as its members say they expect to use it, they see it as a way of ensuring that no one will be given life tenure who is unworthy of judicial independence -- who can't be counted on to make impartial rulings or, when necessary, to check the excesses of the political branches.

The Republicans' vision of democracy is one that Bork articulated a generation ago and that holds sway so powerfully in this country's politics -- a triumphant majoritarianism. Yet while it's bizarre to have an argument so fundamental turn on a fight over a procedural maneuver, the Democrats have the better of the disagreement from the viewpoint of the American system. The law is the compact between the people and our representatives. Sometimes it is judges who must say what that is, despite what the political branches have declared. That's the essence of judicial review and, without it, our system would be radically different.

Because we count on judges' impartiality in making their rulings, Democrats are standing up for democracy in fighting to keep the filibuster. In the war over the courts, they recognize that it's a tool for ensuring that the president's nominees are worthy of life tenure -- especially when Republicans insist on their right to pick judges because of ideology. The function of the selection process prescribed in the Constitution is to hold nominees accountable regarding their fitness for the bench. As Stanley Birch reminded us in the Schiavo case, the payoff of responsible advice and consent is a well-chosen judge who, rather than weaken our system of checks and balances, will exercise his independence to reaffirm the strength of American democracy.

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