Balkinization  

Monday, June 23, 2003

JB

Do Republicans Have Litmus Tests, Too?

Perish the thought.

But according to this story from the New York Times, at least some of them do:

The Supreme Court rulings on the University of Michigan admission policies set off a wave of consternation among conservative groups today. As a result, several officials of the groups plan to demand that President Bush choose someone whose opposition to affirmative action is beyond doubt for a vacancy on the court. . . .

Many conservative public policy groups and conservative political figures have urged the adoption of a wholly race-blind policy that shuts the door completely on any advantage for race or ethnicity. There is great scorn among those conservatives who form an important part of Mr. Bush's political base for any equivocation on such issues. . . .

"It's outrageous that the majority in favor of these racial preferences was formed by Republican appointees," said Clint Bolick, vice president of the Institute for Justice, another conservative group that challenged the Michigan programs.

"Conservatives will want to make sure that anyone appointed to the court in this administration is a strong and sure opponent of racial preferences," Mr. Bolick said, adding that many do not believe that [Alberto R. ] Gonzales [the White House counsel] fits that description.

Speaking on the condition of anonymity, a lawyer who advises the White House on judicial nominations said Mr. Gonzales's position of openness to diversity is now an even greater problem with Mr. Bush's conservative supporters.


In fact, there is nothing suprising here. Since Richard Nixon, the Republican Party has been pursuing a strategy of partisan entrenchment-- attempting to place judges on the federal bench who will take conservatve stands on important issues like race relations, church and state, abortion, criminal procedure and federalism. The goal is to turn back decisions of the Warren and early Burger courts that conservatives cannot abide and to push the Constitution in still more conservative directions. (Indeed, one of the ironies of judicial nominations of recent vintage is that as the Republicans have been taken over by the party's vibrantly conservative southern and western wings, and thus become much more conservative in the past twenty years, the earlier Republican judicial appointments of Presidents Nixon and Ford have seemed altogether moderate by comparison.)

The quest to take back the courts from the wicked Warren Court and its liberal philosophy became even more urgent under President Reagan, and George W. Bush has pushed it even harder, refusing to compromise with Democrats, and thus helping contribute to the current unpleasantness over judicial nominations.

Until very recently, Republicans have simply cared more about the average judicial appointment than the Democrats have, and they have fought long and hard to put people who think the right way (in both senses of that term) on the federal bench. Although this is usually phrased in terms of appointing judges who will abide by the Framers' intentions and will uphold the law and not impose their personal perferences, the politics of Republican judicial appointments, particularly since Reagan, have been abundantly clear.

Nevertheless, President Bush, who is a shrewd politician, well understands that even as he attempts to pack the Court with judges whose beliefs he admires, he must keep public opinion in mind in making judicial appointments at the Supreme Court level (by contrast, very few members of the public pay much attention to lower court nominations). His father understood this point too, which, I think, explains both Souter's appointment and Thomas'. (Souter was more acceptable because unknown, Thomas was expected to be more acceptable because although he was very conservative he was also African-American).

I have long believed that it is not in the interest of the Republican Party for Republican-appointed judges to overrule Roe v. Wade. (See my discussion of the Supreme Court and party coallitions). Nor, for that matter, is it in the interest of the Republican Party for those judges completely to outlaw affirmative action in college admissions (government contracting is another matter). Getting rid of Roe and affirmative action through judicial fiat simply bolsters the Democratic coallition. I'm sure that Bush and Karl Rove understand this perfectly.


UPDATE: Brett Bellmore wants to know whether it is my view that Republicans were the first to engage in partisan entrenchment. Goodness no. The most important example is Democrat Franklin D. Roosevelt's stocking the courts with pro-New Deal judges, who eventually produced the New Deal revolution in constitutional law. Partisan entrenchment has been a key engine of constitutional change throughout the country's history, as Sandy Levinson and I have argued. In fact, partisan entrenchment is neither a Democrat or a Republican invention. It is a Federalist invention. It begins with the Midnight Judges Act of 1801, in which the lame duck Federalist Congress tried to stock the federal courts with their ideological allies. That attempt produced the famous case of Marbury v. Madison and the equally important if less well known case of Stuart v. Laird. The most lasting effect of this partisan entrenchment was none other than John Marshall himself, who continued to promote nationalist ideas long after the party that promoted him to the Chief Justiceship had been disbanded.


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