Can We Nominate Our Way To A Conservative Supreme Court?

Within some quarters of our polity, judicial nominations have always ignited the passions of partisans on the right and left. Recently, the narrowly-averted conflagration over the "constitutional option" (via an ill-advised compromise, in my humble opinion) raised those passions to blood-vessel-popping levels.

In the interregnum between now and the anticipated SCOTUS nomination this Summer, let's engage this debate: Can we nominate our way to a conservative Supreme Court, and if not, what other options do we have to accomplish our objective?

My thesis is that we have failed spectacularly in achieving a conservative bench through the power of nomination. In fact, one could argue that history teaches the best we can achieve via this method is to slow the liberalization of the bench.

Judicial activism is so commonplace, so intoxicating to its practitioners, there is no reason to believe it can be contained, much less reversed, through the replenishment of the federal bench with conservative appointees. If we actually hope to channel the flow of judicial power back into its constitutionally-defined banks, we must do something different: We must rediscover the irreducible importance of saying "no". That is to say, we must return to the principle of "separated powers."

This principle (bane of judicial activism) has fallen on hard times. The Supreme Court has assumed an unnatural and indefensible supremacy over the whole of the federal government. In the decades since Franklin Delano Roosevelt's showdown with the Supreme Court, the judiciary has been on the prowl, absorbing executive and legislative power whenever left undefended by its proper custodians. The Supreme Court's ever more frequent excursions outside its rightful role now raise nary an eyebrow in polite company.

So commonplace, so broadly accepted are these adventures, that the cure for judicial activism jars the ear: the president must stop deferring to the Supreme Court when it exceeds the limits of its authority. He must tell the Supreme Court "no" when it strays into the legislative or executive realm. As foreign as this may sound, it is not a novel proposition – its roots reach deep into our Constitution. To effectively revivify this principle, however, we must first recognize that our current attempts to limit the judiciary have failed.

For several decades we have unsuccessfully tried to return the Supreme Court to its historical (and constitutional) boundaries by nominating individuals who hold to a conservative judicial philosophy. We doggedly fight for our nominees because we believe the right jurists will make for a conservative court. But history teaches we will never nominate our way to a conservative bench, and human nature instructs the effort is quixotic.

The unblinking eye of history shows that Republicans have failed to populate the bench with conservative jurists, even when given abundant opportunity. With control of the executive branch for 24 of the last 36 years, Republicans named an impressive 10 justices to our highest court. But just three are conservatives (do I need to mention they are Rehnquist, Scalia, and Thomas?). This paltry .300 batting average means that, over time, Republicans will likely produce an incrementally more, not less, liberal bench.

Democrats, on the other hand, have been almost uniformly successful in placing reliably liberal justices on the high court. Aside from, arguably, Justice Byron White, who was the last liberal member who grew more conservative after appointment? Thus, with only two Democratic appointments to the Supreme Court in the last 38 years, the Court has nonetheless retained a stubbornly liberal philosophy. If past is prologue, buy judicial activism futures.

What history illustrates, human nature confirms. The drive for a conservative judiciary has not failed for lack of effort, but for not remembering the need for external constraints on the exercise of power.

Along with the black robe, unchecked power awaits new Supreme Court justices. Power, however, exercises a unique, aphrodisiacal attraction. It is grasping, ambitious, aggressive. It seeks always to expand. And once obtained, it is rarely relinquished voluntarily. As J.R.R. Tolkien chillingly illustrated, even the heroic Frodo Baggins succumbed to the allure of the Ring in the end.

Democrats send Justices to the bench to wield that power with abandon; Republicans send them with the admonition to take it up, but sparingly. The urge to drink of it more deeply, however, constantly beckons. All but the extraordinary will eventually answer. Supreme Court Justices normally become more liberal over time because the seduction of power is nearly irresistible. Because the impulse to accumulate power is ingrained in our nature. Because no one tells them "no."

The Founders knew the futility of relying on officeholders' self-governance as a bar to power consolidation. James Madison recognized the need for external, structural, restraints: “[N]one of [the branches of government] ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”

Our tri-partite governmental structure assumes each branch will try to poach on the others' territory, while simultaneously guarding its own prerogatives jealously. The Framers knew that when (not if) one branch showed an untoward interest in another's area of authority, it would be met with a firm, stentorian "No!" It is natural, reflexive, to resist such encroachment. This formula brilliantly yielded a government comprised of something less than saints that yet remained in rough balance.

The judiciary, like Homer's Odysseus, needs external restraint as protection against the Siren-song of power. It needs someone to enforce the boundaries when internal restraint is no match for the mesmerizing call. It needs someone to tell it "no". Lashed to the mast of his ship, Odysseus succeeded where all others had failed – he heard the Sirens' song, and was not destroyed. Madison, and the others, set the branches at odds with each other so mere mortals could wield power, and not be consumed.

Over the past several decades, however, the White House and Congress have developed an unnatural habit of deferring to the Supreme Court's encroachments. In matters of foreign policy, tax, spending, regulation, criminal punishment, and many more, the Supreme Court has advanced on the other branches with little, or token, resistance.

The result is the ascendancy of the premise that the Court must always and everywhere have the ultimate authority in all matters of government. This is both anti-historical and inimical to the well-being of our nation. Long ago, Alexander Hamilton noted the danger of this heresy: "[L]iberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.” Complaisance in the face of the court's encroachment has worked a union in all but name.

The White House must free the executive's authority from this de facto union. In Marbury v. Madison the Supreme Court recognized its duty to follow constitutional requirements without deference to Congress or the Executive. Two hundred years later, the White House must now do the same. It must declare its fidelity to the Constitution before all else, including the Supreme Court's edicts. If it does, the Court will acquiesce, because it can do nothing else.

Like most bullies, the Supreme Court harbors an inherent weakness. Hamilton knew what it was – he helped put it there. He noted that "the judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” The Court's only true power is its ability to convince its audience that it is right. It has used that power to hypnotize the executive branch (and the American people) into believing the Court is always right (or at least always authoritative). It isn't. And when it is not, the president must say so.

A recent Supreme Court opinion illustrates the problem and points the way to the solution. In Rasul v. Bush, the Court amended the habeas corpus statute, making it apply all over the world to non-Americans captured while taking up arms against our country in a foreign land. The President now must either (a) release these unlawful combatants to resume their attacks on our soldiers, or (b) conduct trials for every enemy captured in our war against terror. This is patent nonsense.

Rasul, in Justice Scalia's words (in dissent) "complicate[s] the present war." At least. Had this rule obtained in World War II, the military would have needed to field a parallel army of lawyers. At the end of hostilities, there were 2 million enemy soldiers in custody. Instead of besieging our country through force of arms, our enemies could have paralyzed our forces through a crashing wave of litigation. Justice Scalia illustrated the foolhardiness of bringing the civil justice system into the wartime theater by quoting from what he called a "more circumspect Court":

To grant the writ to these petitioners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. . . . It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.

The Court managed to offend the other two branches with one stroke of the pen: it arrogated legislative authority to itself in amending the statute, and it encroached on the executive by insinuating itself into the conduct of a war. This is nonsense on steroids. What next, embedded judges to issue restraining orders when the rules of engagement don't comport with their view of a proper war?

This is where the power of "no" returns balance between the powers. The President must lucidly, compellingly, explain how the Court wrongfully invaded the Legislature's authority by minting a new habeas statute. He must teach that when one branch of government exceeds its constitutional boundaries, it is incumbent on the others to guide the wayward one back to its proper place. Then he must refuse the hearings the Court ordered.

The price for such leadership would be high. Impeachment proceedings would not be out of the question. William Bennett noted as much in a different context when he urged Governor Jeb Bush to exercise the prerogatives of his office to protect Ms. Schiavo's life, even if Florida courts forbade it. Reacting to the possibility of impeachment, he said: "[I]n the great American experiment in republican government, much is demanded of those who are charged with protecting the rights of the people." Just so.

But impeachment is not the worst that could happen. The worst is our present arrangement, in which an unelected panel of lawyers with lifetime tenure dictates what shall be constitutionally orthodox. Real Americans chafe at such imperial authoritarianism. Leave it to "we the people" to take care that the executive and legislative branches do not slip their constitutional moorings. We will remove those who stray too far, either through elections or, if the offence is grave and immediate, impeachment. The ultimate right to pass judgment on the government's fidelity to the Constitution must remain with the governed, who are, after all, the source of the government's legitimacy. We must not abandon that privilege, that right, to the Supreme Court.

Self-government is a tough, sometimes messy affair. But its rough edges and occasional set-backs are far preferable to well-oiled, hegemonic judicial activism. We must divest the judiciary of its assumed power, and return it to its position as a co-equal, not supreme, branch of government.

It has been famously said the definition of insanity is doing the same thing over and over, each time expecting a different result. We must stop expecting the nomination process to produce a conservative court. It has not, and will not. If we really wish to end judicial activism, we must resurrect the power of "no".

Agree or disagree, let me know your thoughts either by responsive post or e-mail to dkelly@reinhartlaw.com.