One man's activist: what Republicans really mean when they condemn judicial activism.

Judges, watch your backs: The Congressional Republicans have officially declared war on "judicial activists," judges who go beyond interpreting the law into the realm of what GOP lawmakers consider "making" the law. Rep. Bob Barr of Georgia is but one of several Republicans to denounce the current crop of jurists for "assuming for themselves the powers and responsibilities of legislators or executives"--an offense those on the right say must not be treated lightly. They have been particularly incensed over a few recent decisions setting aside death sentences, excluding evidence in a drug case, and blocking the implementation of the California referendum ending affirmative action programs. This May, Barr joined Majority Whip Tom DeLay of Texas in calling for the impeachment of judges as a "proper tool" for "political offenses," with an impeachable offense defined by DeLay as "whatever a majority of the House of Representatives considers it to be at a given moment in history" Their stated goal, according to DeLay: "The judges need to be intimidated"

With an eye toward weeding out future judicial activists, GOP senators have virtually hijacked the appointment process. Judiciary Committee Chairman Orrin Hatch has declared he will not "stand by to see judicial activists named to the federal bench" To this end, Hatch and his fellow Republicans have instituted a massive slowdown on judicial appointments. According to political scientist Sheldon Goldman of the University of Massachusetts, who has been studying the nomination process-for 40 years, the Republicans are engaged in an effort "unprecedented in its scope... to deny the Clinton administration as many nominations as possible"

Among their favorite tactics is the imposition of increasingly intrusive requests for the nominee's opinions. For example, last year Margaret Morrow, the first woman to serve as president of the California Bar Association, was unanimously approved by the Senate Judiciary Committee. Because of Republican foot-dragging, however, Morrow's nomination didn't come up for a floor vote during the 1996 session. Moreover, when the Senate reconvened this year, Republican Charles Grassley of Iowa demanded Morrow's position on every one of 160 California initiatives in the last 10 years. (Grassley eventually scaled back his demands--after all, how much intimidation is necessary?)

Other GOP legislators have pushed for even more direct action to keep "activists" off the bench. Sen. Slade Gorton of Washington tried unsuccessfully to have Congress cut into the president's nominating power by requiring the president to get advance approval for a judicial candidate's ideology from the senators representing the circuit to which the candidate would be nominated. For his part, Sen. Phil Gramm of Texas pledged to block a Clinton nominee on the basis that the person had been "politically active"

Such delaying tactics have already borne fruit. In all of 1996, the Senate let through only 17 trial judges and no appellate judges, an unprecedentedly small number. This year's Congress seems to be following the same route: As of September 30, the Senate had confirmed just 18 judges, leaving 96 vacancies on the federal bench--including around 30 that the Administrative Office of the United States Courts calls "judicial emergencies," judgeships unfilled for more than 18 months. Some slots have been vacant since 1994. For a while, President Clinton provided the Republicans with a convenient excuse for the outrageous number of vacancies by sending up very few nominations. However, this cover is no longer available, as the president has now nominated some 70 judges, many originally sent up during the last Congress.

The conservative crusade against activist judges has been even more effective on the state level, where elective judges who voted in ways displeasing to Republicans have been denied re-election by organized electoral campaigns. In Tennessee, for example, Judge Penny J. White heard only one death penalty case in her 19 months on the state Supreme Court. In that case, she voted with her colleagues to order a new death-sentence hearing for a convicted murderer. Less than two months later, she was denied reappointment in a routine retention election, the victim of a Tennessee Republican Party campaign against her. Likewise, Nebraska Supreme Court Justice David Lanphier was ousted last November for having voted against a term-limits law and in favor of a retrial for some defendants convicted of second-degree murder.

The result of the conservative campaign is a massive pile-up in the federal courts. On the West Coast, oral arguments in some 600 cases were canceled last year, and the Second Circuit in New York has had to cancel sittings as well. One trial judge in Illinois put all of his civil cases on hold and went an entire year hearing only criminal cases, while a San Diego district court holds only about 10 civil trials a year.

The Republicans justify themselves by arguing that the damage they're inflicting is all in the name of defending the constitutional separation of powers against judicial activism. But oddly enough, Republican crusaders seem to have overlooked an important point: Some of the worst "activist" offenders on the bench today are the conservative members of the Supreme Court.

Action Packed

Despite DeLay and company's condemnation of judges who they say "have thrown out the Constitution" in favor of their own wisdom, over the years, it is the Supreme Court's conservatives who have frequently done just that.

For example, in the 1976 case Nat'l League of Cities v. Usery, Chief Justice William Rehnquist (then an associate justice) succeeded in coalescing a majority to overturn federal legislation requiring state and local governments to meet the minimum-wage and maximum-hours provisions of the Fair Labor Standards Act. Unable to rely on any constitutional text, Rehnquist invoked vague notions of "state sovereignty"

More recently, this June the five conservative justices on the court overturned the Brady Gun Control bill because it required local sheriffs to do a background check on a prospective gun purchaser. As in the Nat'l League of Cities case, the conservative justices conceded that they could not actually derive any limitations on federal power from the text of the 10th Amendment, which simply "reserves" to the states the "powers not delegated to the United States" As Justice O'Connor admitted, this is "essentially a tautology," because the amendment says nothing about what powers are in fact reserved. Instead, the justices relied solely on their own conception of what "state sovereignty" and "the federal structure" entail.

In some cases, the conservative majority has gone so far as to openly rewrite constitutional text. The 11th Amendment to the Constitution explicitly excludes from the federal judicial power only suits "against one of the United States by citizens of another State" Nevertheless, two years ago the court's conservatives rewrote the amendment to also exclude suits against a state by its own citizens--in the process overruling a recent precedent, and overturning a federal statute. And just this year, the court overturned the Religious Freedom Restoration Act, a law passed unanimously in the House and by a 97-3 vote in the Senate, which sought to expand protection for religious freedom, particularly for minority sects.

Of course, in the current antigovernment climate, the argument that the justices are simply curtailing federal power in order to honor states' rights is a popular one. It is also flawed. Take the issue of affirmative action: Since 1978, when the Bakke case involving the University of California's decision to set aside 16 out of 100 places for minorities at the Davis School of Medicine was decided, conservatives have voted to strike down virtually every affirmative action plan to come before the court, regardless of whether the plan was adopted by state or federal legislators or officials. Until 1989, they failed except with respect to employee layoffs. With the arrival of Justice Kennedy in 1988, however, the balance shifted, and with its ruling on the 1989 Richmond, Va., case, the Supreme Court struck down some 236 state and local affirmative action plans.

Another example of this indifference to states' rights is the area of criminal justice. Since the Nixon appointees took over in 1972, the conservative majority has steadily cut into the Warren Court decisions establishing rights for the accused. Disregarding its long-standing policy not to hear state cases involving federal constitutional questions if those cases could be decided under state law, the court has reached out to overturn decisions of more liberal state courts.

What becomes increasingly clear from the court's record is that conservative justices are not so much concerned with strict adherence to the Constitution as with promoting conservative values. In none of the aforementioned cases, or numerous others like them, has the conservatives' purported zeal for judicial restraint or states' rights prevented them from riding roughshod over state and local legislation or court rulings that they disagreed with. And although the court's liberals have joined conservatives in some of their most controversial rulings, like overturning the Religious Freedom Restoration Act, even Clint Bolick's Institute for Justice has admitted that the court's conservatives are more inclined to strike down both federal and state laws than Clinton's two appointees, Ruth Bader Ginsburg and Stephen Breyer.

So why aren't Messrs. Hatch, DeLay, Barr, and their friends threatening to impeach the high Court's most active "activists"? Simple: Like their conservative counterparts on the courts, congressional Republicans don't object to "judicial activism" per se. They simply oppose "liberal judicial activism" As one federal judge put it, "The Republicans define `activist' according to their political agenda. It's OK to be an activist if you're striking down affirmative action and gun-free school laws" Or, as American Bar Association President and staunch conservative N. Lee Cooper puts it: `Activism [is] a phrase that, like beauty, seems to be in the eye of the beholder. It is fair to say that for the most vocal critics in today's debate, judicial activism is conveniently tossed around as a means of condemning any position that doesn't fit the critic's ideological mold"

In fact, the political debate over "judicial activism" has undergone a 180-degree turn in the last 70 years. During Franklin Roosevelt's administration, when the largely conservative Supreme Court was striking down New Deal legislation, liberals were up in arms about jurists' overstepping their constitutional bounds. And upon being named to the court, FDR appointee Justice Felix Frankfurter adhered to a strict policy of judicial restraint, reflecting his belief that the court should, whenever possible, defer to the will of the people as expressed through the legislature.

Today, of course, it's the conservatives who are up in arms. Their current campaign against "liberal judicial activists" is part of an ideological struggle that began in earnest as a reaction to the transformation of American life that started in the 1950s: the increased openness and freedom; the refusal of those outside the favored circle of power and privilege--women, blacks, homosexuals-to stay in their place; the ever--more powerful role of government in social and economic matters, and concomitant with that, the implicit devaluation of the rugged, Darwinian individualist. The federal courts were crucial to these changes, making them a natural target for the backlash. The "Impeach Earl Warren" signs that went up all over the South in the wake of the Brown school desegregation decision were among the first expressions of that reaction.

With the Reagan Revolution of 1981, the anti-court forces went into high gear. After numerous legislative failures, Edwin Meese and other die-hard conservatives decided that the only way to radically change American law was by tilting the federal bench sharply to the right. They went at it systematically, focusing on the Supreme Court and intermediate appellate levels where federal law is made. Men (and an occasional woman) from the far right of the judicial spectrum were appointed en masse. Such well-known and not-so-well-known conservatives as Sandra Day O'Connor, Anthony Kennedy, Antonin Scalia, Clarence Thomas, Robert Bork, Richard Posner, and Kenneth Starr were appointed--without objection, in all but a few cases. Two notable exceptions are Bork's and Thomas' appointments to the Supreme Court--though not their appointments to the circuit court.) Potential nominees were asked their views on abortion, school prayer, unions, and other controversial matters. Moderates like Republican Judith Whittaker, who made the mistake of supporting the Equal Rights Amendment; and Philip Lacovara, one of Washington's most distinguished attorneys who, though a Goldwater supporter, joined a lawyers' civil rights group, were vetoed. Independents like Deputy Solicitor General Andrew Frey, who had given $25 to a gun-control group, were also rejected.

The result was a transformation of the federal judiciary as 12 years of Reagan-Bush appointees put solid conservative majorities on almost all the federal courts. The only court that remained relatively free of conservative domination for much of this period was the Supreme Court, because Justice Lewis Powell--most of the time a conservative vote--not infrequently swung over to the liberal side on key issues like affirmative action. That came to an end with the arrival of Anthony Kennedy who, with a few notable exceptions, has consistently voted with the Rehnquist-Scalia-Thomas-O'Connor bloc.

Bill Clinton's victory in 1992 and a Democratic Senate gave liberal Democrats a chance to restore some balance to the federal courts. The Republicans, though in the minority in 1993-94, threatened to challenge nominees they considered too liberal. Clinton's response was to avoid nominating judges who could be labeled as clearly liberal. As a result, a recent study by three political scientists found that the Clinton judges are less liberal than President Jimmy Carter's and quite similar to those of President George Bush, except that there are more minorities and women among the Clinton group.

Then came the Republican takeover of the Senate in 1994. Now, Clinton's judicial nominees and appointees alike find themselves under attack for their "liberal activism"--despite the fact that conservative activists like Clint Bolick have conceded that Clinton's nominees have been "moderate"

Hands Off the Courts

Truth be told, all judges are "activist" They have to be, particularly in constitutional cases. To last more than a few years, a constitution must be written in what Chief Justice John Marshall called "great outlines" that specify only "its important objects," outlines that must be filled in by judges. This is particularly true of our Constitution, written over 200 years ago by people whose vision was shaped by an America very different from the one in which we live today. After all, Brown v. Board of Education was one of the most "activist" decisions in our history. Would we have wanted it to come out differently?

Moreover, all constitutions and most statutes are the product of compromises, many of which are deliberately ambiguous in order to paper over differences that cannot be bridged, only bypassed. When these deliberately ambiguous texts come to the courts, the latter have no choice but to "make" the law.

Activism can, of course, go too far--though what is "too far" is often disputable and usually depends on who wins or loses. It is generally agreed that the pre-New Deal conservative judges were too aggressive, and these days a vociferous minority of our population believes that the Roe v. Wade court was as well. By and large, however, the system has managed to keep this activism within accepted limits. Many of the liberal activist "horrors" cited by DeLay et al., for example, were reversed by higher courts, rightly or wrongly. And if the mainstream of the nation believes the courts have gone too far, history shows that sooner or later the offending rulings will be modified or overruled.

The important thing is to maintain judicial independence. For that, we must try to keep the judiciary as free as possible from the partisanship to which it has recently been subjected. The House Judiciary Committee, for instance, has held hearings on a proposed constitutional amendment to eliminate the life tenure for federal judges that is the precondition for their independence. And Judge Robert Bork shocked even his allies with a proposal to allow a majority of either house of Congress to overrule federal or state court decisions.

Of course, some partisanship is inevitable, especially at the Supreme Court level. A conservative president can naturally be expected to nominate somewhat conservative judges, and vice-versa. What has kept the system running smoothly in the past has been the understanding that it is the president's prerogative to nominate any jurist he feels has the intellectual mettle to do the job well. And by and large, Democrats went along with the Reagan-Bush appointments (In fact, during Bush's final year in the White House, the Democrat-controlled Senate approved 66 judicial appointments.) In order for an ideological balance to be maintained in the courts, the Congress must respect the will of the people--as expressed through their elected president--where judicial appointments are concerned. That's the way the system is supposed to work. By trying to win the whole game, the Republicans are gumming up the works. It is they, in fact, and not the judges they are attacking, who are betraying our constitutional heritage "in order to advance their own political views"