The Bush Bashers: They Seek Judges Who Will Interpret The Law On Whim.(ISSUES & INSIGHTS)(VIEWPOINT)

Byline: Daniel E. Troy

The uproar over President Bush's judicial nominees is now in full cry. But it began even before Bush announced any picks for the federal bench. Yale professor Bruce Ackerman, for example, has urged the Senate not to confirm any Supreme Court nominees during the next four years.

Meanwhile, Senate Democrats are threatening to vote in lock step against every Bush nominee unless a lone Democratic senator receives veto power over nominees from his own state.

Who are these judicial nominees that are causing so much hysteria? At considerable risk of oversimplifying, they are men and women who believe that courts ought only to strike down laws as unconstitutional where they have a clear basis in the text of the Constitution for doing so, as that text has beenhistorically understood.

They believe courts should stick to the plain meaning of the words of a law.That means judges should not try to divine hidden meanings in the law by interpreting it so broadly that the judge has unlimited power to decide a case as he or she sees fit.

The judges envisioned by Bush take this more disciplined approach because they understand that the Constitution protects liberty in an ordered way: by separating powers among the three branches, and between the federal government and the states, and by generally making legislation hard to pass.

The Constitution envisions judges playing a limited role in this system, particularly because of their lack of accountability to the people. The framersof the Constitution sought to restrict judicial power to those moments when the democratic process has clearly gone awry and the legislature has passed a law that impinges upon a long-held principle embodied in the text of the Constitution.