Jewish World Review Nov. 11, 2004 / 27 Mar-Cheshvan, 5765

Thomas Sowell

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An ominous Specter, Part III

http://www.NewsAndOpinion.com | As a member of the Senate Judiciary Committee, Senator Arlen Specter has often justified his voting for or against judicial nominees on grounds that he supports those nominees whose views are in the "mainstream," as distinguished from those whose views are "extremist."


Now that he is in line to become chairman of that committee in January, because of seniority, the meaning of these two elusive — and elastic — terms becomes crucial.


Senator Specter voted against the confirmation of Judge Robert Bork and for the confirmation of Judge Antonin Scalia to the Supreme Court, even though their voting records on the Circuit Court of Appeals for the District of Columbia were virtually identical. On a couple of decisions where they differed, Judge Scalia took a more conservative position than Judge Bork did.


Why then was Judge Bork considered to be so conservative as to be "out of the mainstream" while Judge Scalia was not? It had nothing to do with their records.


It had to do with the fact that Antonin Scalia's nomination, which preceded Bork's, created no political firestorm because Scalia was replacing another conservative Justice and so would not have changed the lineup on the Supreme Court.


Robert Bork, on the other hand, would have been replacing a more liberal Justice and therefore would have shifted the balance of power on the High Court. Liberal and left-wing organizations across the country mobilized to prevent that from happening at all costs and launched a massive smear campaign that created a new verb, "to Bork" a nominee.


Those Senators who buckled under these pressures — including Senator Arlen Specter — could justify voting against Judge Bork on grounds that he was an "extremist." The term is very elastic and politically convenient.

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If "mainstream" becomes the litmus test for judicial nominees, then that means continuing the trends of the past half-century toward judges who take policy decisions out of the hands of the voters and their elected representatives, and impose their own notions as the law of the land.


"Mainstream" is not even a fixed position. The more judges get away with overstepping the boundaries between the courts' jurisdictions and the areas reserved by the Constitution for democratically elected officials, the further into those reserved areas judges go.


Within living memory, it would once have been considered unthinkable for a judge to order a state legislature to raise taxes to finance the judge's pet project. But that has now happened.


Issues like gay marriage or abortion may stir up controversy in the media but most of that controversy is about which policy is desirable. The more fundamental question is: Who is to decide?


Those who say that voters, not judges, should decide are not in the "mainstream." They are considered to be "extremists."


The easy way out for any President is to nominate people who can be easily confirmed by the Senate. Even conservative Republican Presidents have put liberal zealots on the Supreme Court or have nominated people who carried the "moderate" or "conservative" label, but who lacked the intellectual depth or the backbone to resist fashionable trends toward judicial activism.


To President Bush's credit, he has tried to stop the steady drift toward arbitrary judicial rule by nominating people like California Supreme Court Justice Janice Rogers Brown who have a track record of opposing judicial activism.


A President who is trying to make a fundamental change in the federal judiciary and a chairman of the Senate Judiciary Committee who wants to continue the "mainstream" trends are in a fundamental contradiction, no matter how much each side tries to paper over the difference with nice words.


With so many federal court vacancies, and with several Supreme Court vacancies almost certain to occur during the next four years, this may be the last chance in our lifetime to reverse the trend toward government by unelected judges.


That is infinitely more important than putting Senator Arlen Specter in charge of the Senate Judiciary Committee because of his seniority.

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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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