Prof. Robert P. George, McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton, offers some good advice today in the Wall Street Journal.
First, he describes the problem:
For more than 40 years, it has been a primary goal of the conservative movement to restore the courts to their proper constitutional role. The strategy has been to elect presidents who will nominate judges who can be counted on to observe the constitutional limits of their own authority. Like previous Republican presidents, President Bush pledged to appoint “judges who will interpret the law, not make it.”
So far, the strategy has failed. By a better than two-to-one margin, Supreme Court appointees of Republican presidents from Nixon to George H.W. Bush, like their Democratic counterparts, have freely departed from or ignored the text, logic and historical understanding of the Constitution whenever it suited their purposes.
Nominating “stealth” candidates has been part of the problem.
More often than not, these nominees, once confirmed, turn out to be highly responsive to elite or establishment opinion and unconstrained by any sense of the constitutional limits of their own authority.
In response, some frustrated conservatives have proposed removing the Supreme Court’s appellate jurisdiction in some sensitive areas, but Prof. George is surely right when he argues that such an approach would be doomed to failure.
Prof. George’s advice?
To fill the seat being vacated by Sandra Day O’Connor, President Bush should nominate an intellectually distinguished and articulate jurist willing to set forth and defend a sound understanding of the constitutional limits of judicial power in the confirmation hearings. Give up the stealth strategy. Nominate someone whose record makes clear that he or she rejects the idea that judges are entitled to invent rights and manufacture constitutional doctrines to advance ideological goals. Let the nominee make the case for true constitutional government to the American people. Let us have a national debate over the role of the courts and the scope and limits of judicial power.
I think this advice is good, as far as it goes, but it doesn’t go far enough. Republican presidents, starting with the Republican president we have right now, should indeed abandon the stealth strategy and nominate intellectually gifted, experienced candidates for judgeships who can articulately and powerfully advocate the judicial philosophy Republican presidents say they favor, but the responsibility of Republican officeholders, and candidates for office, should not stop there. They themselves should abandon their own ongoing reluctance to oppose racial preferences — in principle as well as practice — in their own pronouncements.
If they were to begin doing so, they would not only be defending a good principle — that everyone should be treated without regard to race, religion, or eithnicity — but also good politics, since strong majorities of voters agree with that principle.
In Virginia Republican Jerry Kilgore is locked in a tight race for governor with Democrat Tim Kaine (this week’s Rasmussen Poll shows him two points behind). Still, I haven’t heard him speak out forcefully on this issue, or even not so forcefully. I have heard him utter banalities in one of the debates, which I described here as “a severe Michigan/Miers moment.”
If Republican leaders won’t forthrightly defend this fundamental principle, why should anyone expect the judges they nominate to do so?
