‘Give Up the Stealth Strategy’

By Robert P. George Oct. 29, 2005 12:01 am ET

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.

Many frustrated conservatives have come to doubt that the strategy can succeed. Here is the problem, as they see it. Liberals in the Senate — mostly Democrats, but also a few Republicans — will block the confirmation of any nominee who is known to reject key dogmas of liberal jurisprudence, such as the idea that the Constitution contains an implied generalized right to “privacy” that protects abortion and sodomy and may even require legal recognition of same-sex “marriages.”

Republican presidents are, therefore, forced to nominate “stealth candidates” whose views on basic principles of constitutional interpretation are unknown and may even be indeterminate. 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.

Some conservatives have proposed alternative strategies for reining in the courts — everything from impeaching “activist” judges to removing the Supreme Court’s appellate jurisdiction to review legislation in areas (such as abortion) where usurpations of democratic decision-making authority have been egregious. Realistically, there is little hope of solving the problem by such strategies. Defenders of the imperial judiciary will, with the assistance of a compliant media, successfully depict such efforts as an assault upon the ideal of judicial independence. Another way will have to be found.

Here is my proposal. 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.

Some will immediately object: Reagan tried that strategy in 1987 with Robert Bork and it failed spectacularly. The American people say they want judges who will refrain from “legislating from the bench,” but they don’t really mean it. In practice, liberal senators and activist groups and their friends in the media will be able to frighten the public into opposing a nominee who questions the “right to privacy” and other fabricated doctrines.

Judge Bork was indeed a distinguished, articulate and forceful defender of disciplined constitutional interpretation and limited judicial power. His rejection by the Senate was an injustice to him and a tragedy for the nation. It is important, however, not to read too much into his defeat or to draw from it false lessons. His arguments about the Constitution and the role of the courts were lost sight of in the massive campaign of disinformation and character-assassination waged against him, beginning with Teddy Kennedy’s shameful speech claiming that “in Robert Bork’s America blacks would be forced to sit at segregated lunch counters.”

Judge Bork’s efforts to get the debate back onto the plane of constitutional principle were largely unsupported. The Democrats controlled the Senate. The Reagan administration, caught off guard by the representations of Sen. Joe Biden and others that a jurist of Judge Bork’s stature would be treated with respect, lacked a plan for defending its nominee. Conservative legal scholars equipped to make the case for a true constitutionalist judge were scarce. The mainstream media — fiercely hostile to Judge Bork — had a near-monopoly on the means of disseminating information and shaping public opinion in a real-time political debate.

All of this has changed. Republicans hold the majority in the Senate (though admittedly three or four might as well be Democrats). The Bush administration knows that its nominee will face brutal attacks from people who will say anything and stop at virtually nothing to prevent his or her confirmation.

Indeed, given the importance of the seat now to be filled, the attacks will come even if the nominee is a “stealth candidate,” so this is no reason for the president not to nominate someone with a record of commitment to constitutional principle. Unlike 1987, there is now a large number of conservative scholars who would be ready, willing and able to join the nominee in laying before the American people an argument about the proper role of the courts. Finally, the mainstream media’s monopoly has been decisively broken. Supporters of a constitutionalist nominee would have no want of means for getting their voices heard and their message out.

It is true, as Lincoln said, that “public opinion is everything; with it nothing can fail, without it nothing can succeed.” But this scarcely counts as an argument against an anti-stealth strategy for restoring courts to their constitutional bounds. As Lincoln himself observed, “he who molds public opinion goes deeper than he who enacts statutes and pronounces decisions.” President Bush should send to the Senate a nominee who is prepared to mold public opinion by taking the argument for constitutional government to the American people.

Mr. George is McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University.