Yesterday, Rocket Man stated that the Supreme Court’s decision on the juvenile death penalty should be viewed in conjunction with the deepening controversy over the confirmation of President Bush’s judicial nominees and nominees to be. He is clearly correct. And that controversy should be viewed in its historical context.
Justice Kennedy wrote yesterday’s opinion. Though Kennedy is far from the most liberal current Justice, it can be argued that he is the most activist one. In fact, Mark Levin made just that argument on NRO’s Corner this morning.
President Reagan nominated Kennedy. In those days, the pool of strong candidates in Kennedy’s age bracket who were ideologically-grounded conservatives was not nearly as large as it is today. President Reagan’s first choice for the Court was Robert Bork, the leading such conservative of that day. Because hard-edged conservatives of Bork’s generation were rare, it was possible to view him as outside the perceived mainstream. Plausible or not, this argument prevailed and led to Bork’s defeat. Reagan’s second choice was a member of the then-emerging new breed of intellectual conservatives, Douglas Ginsburg, now the chief judge of the U.S. Court of Appeals here in Washington, D.C. He failed because he had smoked marijuana.
Reagan then turned to a more conventional breed of Republican nominee, what I call the “sound” man. Such individuals recommend themselves not through rigorous conservatism, but through the sense (or the hope) that they are “sound.” I consider nearly all of the confirmed Republican nominees since Nixon’s day — from Burger and Powell through Thomas and Souter — to fit this description. The two exceptions are Rehnquist and Scalia.
Some of these Justices turn out to be soundly conservative (Burger and Thomas); at least one (Souter) never was. Most of them fall somewhere in between, often starting out soundly but, because their conservatism lacks firm roots, later drifting the center or the left (O’Connor and Kennedy).
By contrast, Democratic presidents always have had a deep pool of talented ideological liberals to tap into — traditional New Deal types like Abe Fortas and Arthur Goldberg (a union lawyer); feminists like Ruth Ginsburg: academic liberals like Stephen Breyer. The only “sound” appointee was Byron White. He drifted to the center, but I doubt that John Kennedy would have minded.
These days, Republican presidents too have a rich pool of strong ideologically motivated talent from which to pick. The lonely conservative intellectuals of twenty years ago have many disciples now. The Federalist Society successfully promotes conservative legal thinking in law schools and beyond. And the mainstream has moved as the result of conservative political successes. Not long ago, a lawyer who attended law school with conservative Court of Appeals Judge John Roberts (a leading candidate for the Supreme Court) told me that Roberts was the most conservative student he knew at Harvard. No one, he said, would have considered Roberts in the mainstream back then. However, the lawyer, though a liberal, readily agreed that Roberts is in the mainstream (not the same thing as the center) today.
This brings me back to the confirmation struggles. Republicans no longer need to rely on “sound” nominees; they can tap highly qualified rigorous conservatives. And this is just what the Democrats are resisting. They want a return to the days of “sound” Republican nominees. The reason is obvious. Such nominees are unlikely to be very conservative in the first instance, and quite likely to drift to the left as they age. The fight today is, in essence, the fight to defeat Bork and replace him with Kennedy.
Naturally, then, the Democrats employ the same “outside the mainstream” argument. Viewing the matter charitably, one can almost believe that the Democrats simply are locked into a 1980s mentality under which, as I said, it is plausible to view rigorous conservatives in this way. More realistically, I believe that the Democrats are willfully trying to repeal the obvious shift in the location of the mainstream.
In any case, as we saw again yesterday, the stakes could not be much higher.
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