Three-piece suits and black robes: business should get serious about judicial appointments.(The Judiciary)

No one predicts anything but bloodshed over the Bush administration's forthcoming judicial appointments, especially to the Supreme Court. Active, energetic business support for embattled, highly qualified nominees would help stiffen wavering senators' backs and break the sure-to-come filibusters. Even so, businessmen continue to maintain their traditional standoffishness on judicial appointments. They haven't realized--yet--that this is nothing less than a gentle form of corporate suicide.

Business sat out the battles over the Robert Bork and Clarence Thomas nominations. Its record in recent brawls over appellate judges has been equally lackluster. Judge William Pryor, the former attorney general of Alabama, worked miracles to beat the trial bar in that state by mobilizing support for legislative tort reform and helping get sensible judges elected. He also took a courageous stand against an Alabama supreme court chief justice's insistence on defying federal law governing the display of religious symbols on government property. Religious groups nonetheless strongly supported Pryor's recess appointment to the Eleventh Circuit Court of Appeals--while business groups did not lift a finger.

The reason for their reluctance to get involved is that corporate leaders seem to think that federal judicial appointments are principally about abortion (which the Fortune 500 don't do) or racial quotas (which they like). Commercial cases, on the other hand, are less morally and politically controversial, and often pit firms or industries against one another. Companies, therefore, often have no way of knowing whether they will find themselves on the "conservative" or "liberal" side in future disputes, which implies that they have a stake in the nominees' competence but not their ideology. Businessmen may also believe that anything that needs fixing can be fixed by Congress or an administrative agency--a myth that their poorly monitored Beltway lobbyists happily perpetuate.

To illustrate the threats posed by these misperceptions, consider the doctrine of federal preemption, where debate centers on whether federal regulatory statutes trump state law. State tort-law claims--for example, for fraud, alleged product defects, or a failure to warn consumers--often put corporations at the mercy of local judges and juries. The argument that federal law preempts such claims accordingly emerges as the only viable defense. Hence, arcane preemption doctrines have become Ground Zero in the war between the plaintiffs' bar and corporate defendants. The last four Supreme Court appointees have all proven far more hostile than their predecessors to federal preemption. As a result, preemption doctrines have been greatly weakened, and may be on the verge of a fateful collapse--one potentially dangerous for corporations.

An additional danger is an emerging coalition of liberal, pro-regulatory judges and conservative "states' rights" enthusiasts who erroneously associate state tort law, trial lawyers, and New York attorney general Eliot Spitzer with "federalism." Spitzer has often, and proudly, painted his attempts to regulate the nation's financial markets in accordance with his own business model as pristine exercises of federalism. "The whole new federalism approach vaunted by the Bush administration and the Reagan administration was designed to empower state securities regulators," he has claimed. "That's what I'm doing." Similarly, trial lawyers insist that class actions with millions of plaintiffs across the country, against multinational corporations, are the inalienable prerogative of some state judge and local jury. Why? Because, they say, tort law is "the traditional province of the states."

Constitutionally, this is nuts. Rightly understood, federalism means that states must be free to govern their own affairs--which in turn means that they must refrain from elbowing their way into other states' affairs. (Spitzer's perceived authority to regulate securities firms and transactions in all 50 states is as intellectually coherent as an individual "right" to mutual aggression.) The Founders were fearful to the point of obsession over parochial state interferences with the national economy and with sister states' interests, and they wrote a Constitution to forestall such state-on-state aggression.

And yet, many respectable conservative jurists--including many of the justices who have carried out the Rehnquist Court's so-called federalism revolution--have somehow persuaded themselves that anything the states want to do is, ipso facto, "federalism." (A few such jurists wear their willingness to enforce this false federalism--even at considerable cost to the economy--as a badge of ...