Three Words for Bush and His Judges

By E.J. Dionne

WASHINGTON—Just say no.

The Senate’s Democratic majority—joined by all Republicans who purport to be moderate—must tell President Bush that this will be the answer to any controversial nominee to the Supreme Court or to the appellate courts.

The Senate should refuse even to hold hearings on Bush’s next Supreme Court choice, should a vacancy occur, unless the president reaches agreement with the Senate majority on a mutually acceptable list of nominees.

And no Bush nominee to a lower court deserves any deference now that we learn that U.S. Circuit Court Judge Brett Kavanaugh may have misled the Senate during his confirmation hearings. Kavanaugh claimed he was not involved in administration discussions about setting the rules for the treatment of enemy combatants. The Washington Post reported that he actually was.

Although a spokeswoman for Kavanaugh insisted that his testimony was “accurate,” Senate Judiciary Chairman Patrick Leahy said, “I don’t believe that he was truthful with us.”

As for the Supreme Court, we now know that the president’s two nominees, Chief Justice John Roberts and Associate Justice Samuel Alito, are exactly what many of us thought they were: activist conservatives intent on leading a judicial counterrevolution. Thursday’s 5-4 ruling tossing out two school desegregation plans was another milestone on the court’s march to the right.

Even after he was confirmed, Roberts was talking about something other than the 5-4 conservative court we saw this year on case after case. In a speech at Georgetown University Law School in May 2006, Roberts rightly argued that “the rule of law is strengthened when there is greater coherence and agreement about what the law is.” It’s a shame this quest for broader majorities had so little bearing on the 2007 Roberts-led court. 

Especially troubling was the opinion offered by Roberts and Alito this week eviscerating the rather modest restrictions on sham “issue” ads in the McCain-Feingold law. The provision, which applies for 30 days before a primary and 60 days before a general election, is aimed at preventing large amounts of corporate and union money from getting around campaign finance restrictions. 

Three conservative justices, Antonin Scalia, Clarence Thomas and Anthony Kennedy, were willing to admit that in voiding the law they were overturning a precedent set by the court only four years ago. But Roberts and Alito pretended to follow the earlier ruling while ripping its guts out. Scalia called this “faux judicial restraint.”

“The court (and, I think, the country) loses when important precedent is overruled without good reason,” Justice David H. Souter wrote for the dissenters. Exactly. But upsetting precedent, directly or indirectly, is a major goal of this new conservative majority.

As Norman Ornstein of the American Enterprise Institute noted this week in Roll Call, the issue-ad decision demonstrated “not a careful, conservative deference to Congress” but instead “a willingness by Roberts to toss aside Congress’ conclusions to fit his own ideological predispositions”—the very definition of judicial activism.

If another conservative replaces a member of the court’s moderate-to-liberal bloc, the country would be set on a conservative course for the next decade or more, locking in today’s politics at the very moment when the electorate is running out of patience with the right.

That’s why a majority of senators should warn Bush now that they will not take up his nominee unless he strictly construes the Constitution’s provision that he appoint justices with “the Advice and Consent of the Senate.” The rule should be: If advice isn’t taken, there will be no consent.

And if conservatives claim to believe the president is owed deference on his court appointees, they will be—I choose this word deliberately—lying. In 2005, conservatives had no problem blocking Bush’s appointment of Harriet Miers because they could not count on her as a strong voice for their legal causes. They revealed that their view of judicial battles is not about principle, but power. When they went after Miers, conservatives lost the deference argument. 

Much has been written about how the judicial confirmation process is “broken.” A more accurate view is that the ideological struggles in our politics have moved to the courts, and that the formal processes of the Senate don’t deal well with such conflicts.

It would be far better to be honest about what’s going on. The Senate should be unapologetic in saying no, upfront, to loading the bench with conservative judicial activists. If Bush is given this warning and still refuses to engage in serious consultation, the burden will be on him. 

E.J. Dionne’s e-mail address is postchat(at symbol)aol.com.

© 2007, Washington Post Writers Group