Suppose 2005 had fulfilled President Bush’s fondest hopes. His intervention in Iraq was now successfully winding down, to reveal the first vibrant democracy in the Islamic world – vindicating the higher morality of his assault on the Old World Order that America helped create in the aftermath of World War Two. On the home front, the Republican Congress was proving equally responsive to his call to privatise Social Security – replacing tired New Deal notions of communal solidarity with a bright individualistic future in an Ownership Society. With his poll numbers returning to the stratospheric heights of 2001, the death of Chief Justice Rehnquist and the resignation of Justice O’Connor would have seemed a godsend: having established the moral bankruptcy of Social Security at home and the United Nations abroad, the time had come to repudiate the lawless decisions of the modern Supreme Court.
In this triumphalist scenario, the recent Senate hearings would have taken a different turn, beginning with the identity of the nominees. America is full of brilliant jurists publicly proclaiming the need for a radical break with the dark age of 20th-century law. Repudiation takes the form of a myth of rediscovery of a distant golden age, when the Founders got things right for all time. To build a new constitutionalism for the 21st century, originalists call on America to rediscover the true intentions of its 18th-century Founders, which magically coincide with their own vision of the future: a world in which the president wields unchecked powers as commander-in-chief while Congress cannot legislate to protect non-market values; a place where religion is free to occupy the public square while rights to privacy are radically restricted.
The nomination of any of neo-conservatism’s leading lights would have generated an electric confrontation in the Senate. The nominee’s masterly refutations of an ageing Ted Kennedy would have been compelling theatre, dramatising the rise of a new age of American constitutionalism. At long last, the Republicans would have made up for the devastating rejection of Robert Bork, who would now appear as an originalist prophet wrongly denied admission to the holy temple of the law.
But it was not to be. 2005 was the year of the Iraq debacle, the Katrina fiasco, the DeLay scandal. The president’s challenge to Social Security was simply ignored by the Republican Congress. With the president sinking precipitously in the polls, the Supreme Court vacancies represented a challenge more than an opportunity. Could the president manage to maintain the support of 55 Republican senators when he was no longer a political asset in the upcoming elections in 2006 and beyond?
His nominations showed that, in this area at least, he no longer suffers from triumphalist illusions. He refused to follow Ronald Reagan and nominate plain-spoken originalists like Antonin Scalia and Robert Bork. Instead, he took the path described in my previous essay,and tendered stealth nominees whose public records provided few clues as to future performance.
Not that this administration was equally in the dark. During the 1980s, both John Roberts and Samuel Alito were bright young recruits to the Reagan Justice Department’s efforts to reverse the liberal jurisprudence of the Supreme Court; and their membership of the right-wing Federalist Society gave the neo-conservative establishment ample opportunities to gain an informal sense of the strength and substance of their constitutional convictions. Bush’s failed nominee, Harriet Miers, was even more of a presidential insider. She served as his personal lawyer in Texas, coming with him to Washington, where she served as counsel to the president. This turned out to be her problem. While the president was convinced that she would do the right thing once she got to the Supreme Court, she had not been vetted by the right-wing constitutional establishment at Federalist Society meetings or in prior Republican administrations. Since the president is a legal lightweight, his personal word wasn’t good enough. At a brighter moment in his presidency, Bush would have forced right-wing sceptics into line. But with his poll numbers in the thirties, leading neo-conservative pundits denounced his choice, and when leading right-wing senators began to express their doubts, Bush quickly withdrew his nomination rather than risk Senate hearings that might reveal the fragility of his senatorial coalition. Paradoxically, presidential weakness forced the nomination of a more aggressively conservative candidate.
The Senate hearings asked just the right question: were Roberts and Alito genuine conservatives, devoted to the interstitial development of existing law, or were they neo-conservatives bent on a revolutionary reconstruction of modern constitutionalism? Both gave the same reassuring answer, as they intelligently discussed the applicable precedents in the most controversial areas, and assured the senators of their respect for stare decisis (i.e. determining points of law by legal precedent). Unfortunately for them, Clarence Thomas had given similar reassurances, and then threw them to the wind as soon as he got his job. As his opinions make clear, generations of judicial reflection and decision do not stop Thomas from acting on his idiosyncratic interpretations of the true meaning of the Framers’ words. Even if Thomas’s example had not cast a cloud over Senate testimony, the Supreme Court has never been a slave to stare decisis. So the nominees’ efforts to portray themselves as modest conservatives generated a mind-numbing cat-and-mouse game – with Roberts and Alito presenting highly intelligent surveys of existing case law while senators sought to pin them down on hot-button cases like Roe v. Wade.
Nevertheless, there were danger signs in the opinions both nominees had written as judges on the courts of appeal. In his short time on the bench, Roberts joined a sweeping decision upholding the president’s power to create military tribunals for the Guantanamo detainees that departed sharply from the standards of due process established by Congressional legislation. While supporting sweeping powers for the commander-in-chief, Roberts wrote a dissenting opinion in another case that would have imposed sharp limits on Congress’s authority to protect endangered species. During his 15 years on the bench, Judge Alito compiled a much longer record that established him as a very conservative jurist: in 90 per cent of the cases in which he filed a dissent, he was to the right of the prevailing majority opinion, declaring, among other things, that Congress lacked the power to regulate the possession of machine guns, and that pregnant mothers could be required to gain the permission of their spouses before exercising their constitutional right to an abortion. Moreover, the Senate gained access to Alito’s 1985 application for a promotion in the Reagan Justice Department which allowed a rare glimpse of the kind of fellow the Administration thought they were getting: ‘I am and always have been a conservative … I believe very strongly in limited government, federalism, free enterprise … the need for a strong defence and effective law enforcement, and the legitimacy of a government role in protecting traditional values.’
But that was twenty years ago, Alito explained, and while he did not repudiate these earlier statements, he assured sceptical senators that his past fifteen years as a judge had taught him to keep an open mind. Rather than following Bork by explaining his judicial philosophy in a forthright fashion, Alito followed Roberts, and overwhelmed the senators with legalese. Here was where the Democrats failed to launch a convincing response. They could not figure out a way to move beyond the impenetrable discussions of legal esoterica and convey, in commonsense terms, the grave dangers of an originalist turn in constitutional law. Their ancient victory over Bork had led them astray. Bork had proved to be his own worst enemy on television, creating an impression of an arrogant know-it-all spouting reactionary bromides. Roberts and Alito droned on and on in their earnest legalistic way, and the public simply tuned out. When the Democrats’ critique failed to resonate, Alito’s fate was determined by the Republican moderate, Arlen Specter, who chairs the judiciary committee. Although he has often inveighed against the neo-conservative constitutional agenda, Specter refused to follow the precedent set by the hard right when it vetoed the more moderate Miers nomination. Instead of leading a centrist rebellion against Alito, Specter’s support of the nomination gave the president the solid Republican majority he needed to succeed in his stealth strategy.
Only time will tell what will become of these stealth candidates. Much will depend on the future course of American politics. If the right-wing collapse of 2005 is merely a passing moment, and a resurgent neoconservative movement continues to control the presidency and the Senate, the next nominee will be less stealthy in her originalism. When she – it will surely be a she – makes it to the court, she may well convince Roberts and Alito to join a solid majority bloc of five judges who will embark on a crusade against 20th-century constitutionalism. If 2005 turns out to be the decline before the fall, and American politics takes a more centrist turn, I suspect that both recent appointments are sufficiently pragmatic to join an expanding bloc of true conservatives tempering the revolutionary enthusiasms of Thomas and Scalia. But I have been wrong before. Judicial Kremlinology is not my speciality.
There is a lesson here for other countries, like Britain, still experimenting with the proper design of a constitutional court. Quite simply: follow the Germans, not the Americans. Constitutional court judges in Germany serve for a non-renewable term of 12 years, and require a two-thirds vote for their confirmation. This gives the minority party a veto over extremists, and ambitious jurists an incentive to avoid legal societies that espouse right or left-wing constitutional ideologies. Over time, the 12-year turnover assures that doctrinal evolution tracks centrist constitutional understandings, leaving it up to democratic politicians to lead the country down more adventurous paths to the left or right, as the voters choose.
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