Jewish World Review Nov. 10, 2004 / 26 Mar-Cheshvan, 5765

Thomas Sowell

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An ominous Specter, Part II | The illness of Chief Justice William Rehnquist and the brazen announcement by Senator Arlen Specter of his own policy litmus test for judicial nominees raise very serious questions about which way this country will go at this crossroads in our legal history.

The South Dakota voters' defeat of Senator Tom Daschle, leader of the obstructionists who refused to let some of President Bush's judicial nominees come up for a vote in the Senate, seemed to offer some hope that such obstructionism might subside. But Senator Specter's words suggest that the mantle of obstructionism may simply have been passed on from Daschle to Specter.

If Senate Republicans follow seniority and make Senator Specter chairman of the Senate Judiciary, then we could be in for the dangerous business of litmus tests for judicial nominees and the trashing of nominees who believe in following the original intent of laws, rather than engaging in judicial activism.

First of all, what do such terms as "litmus test," "judicial activism" and "original intent" mean in plain English?

The Senate has the Constitutional duty to "advise and consent" on the President's choice of judicial nominees. For well over a century, that meant that Senators decided whether a particular nominee was qualified to be a federal judge or a Justice of the Supreme Court.

For a long time, Supreme Court nominees did not even appear in person to be questioned by Senators. Their record was public knowledge and they could be confirmed or not confirmed on that basis.

Under these conditions, the question of how they would vote on specific issues that might come before them did not arise. There could not be any litmus test based on whether they were for or against particular policies favored by particular Senators.

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That has of course all changed in more recent times. Those who remember the circus atmosphere and smear campaigns during the nominations of Judge Robert Bork in 1987 and of Judge Clarence Thomas in 1991 will be painfully aware of how much things have changed.

Today, some Senators want to know how judicial nominees would vote on specific issues like abortion, racial quotas, or environmental regulations. Senators cannot admit that they want to preselect judges who will rule their way, since that would destroy the independence of the judiciary under the Constitutional separation of powers. But they ask questions that amount to the same thing.

President Bush has said repeatedly that he has no litmus test on any issue but that he wants judges who will apply the law instead of imposing their own policy preferences. But people like Senator Arlen Specter want judges who support particular policies.

That is what judicial activism means. The opposite judicial philosophy involves following what is called the "original intent" of the law.

Senator Specter and other liberals muddy the waters by claiming that nobody knows what the original intent was among those who wrote the Constitution or even later legislation. This is a completely phony issue and a red herring.

Leading legal scholars from William Blackstone in the 18th century to Oliver Wendell Holmes in the 19th century to Robert Bork in the 20th century have made it clear beyond any honest misunderstanding that they do not mean that those who interpret laws today should try to read the minds of those who wrote those laws.

Even if it were possible to know what was in the inner thoughts of people in the past, it would be completely irrelevant because nobody voted on what was inside their minds. They voted on what the words themselves meant at the time they were written.

Phrases like "due process" and "freedom of the press" had a long established meaning in British law even before they were put into the Constitution of the United States. If we want to change the Constitution, there is a process for amending it, without having unelected judges doing the amending for us.

Anyone who doesn't understand this should not be chairman of the Senate Judiciary Committee and a roadblock to restoring Constitutional law in America.

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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, "Applied Economics: Thinking Beyond Stage One." (Click HERE to purchase. Sales help fund JWR.) To comment please click here.


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© 2004, Creators Syndicate