Choosing better judges.(Supreme Court membership)

A new president's guide

The last election made painfully clear both the importance of the courts in American politics and the danger of activist judges, The candidate who explicitly opposed judicial activism won, but just electing such a candidate is not enough, The new President must take concrete steps to improve the selection of judges.

Nor is the Supreme Court the only forum that matters. By the end of the last Congress, the federal courts of appeals were on the verge of domination by liberal appointees. Republican-appointed judges held a majority in only eight of the 13 courts of appeals--and in five of those eight, a swing of one seat from Republican-appointed to Democrat-appointed would cost conservative jurists the majority. Some appellate courts were downright depressing. For example, on the Ninth Circuit Court of Appeals, which serves 45 million people, only seven of 25 active judges were appointed by Republican Presidents.

These appellate courts are far more powerful than most Americans realize. The U.S. Supreme Court hears relatively few cases; so the appellate courts almost always have the final word on important matters of federal law. Even the courts below the appellate level, the federal district courts, critically affect American life: There judges direct the flow of evidence, find the facts that frame cases, and take the first crack at applying the law in a dispute. In these courts, too, the presence of Republican appointees is rapidly diminishing.

Admittedly, a President's party affiliation is not a completely reliable indicator of how his judicial appointees will decide any particular issue. Though Republican Presidents have had more cause for disappointment in recent years, Democrats have undoubtedly rued their selection of certain judges. Indeed, given the workings of the political process, judges appointed by a President of one party are occasionally selected by a senator of the opposite party. Still, a President's nominees tend to reflect the President's governing philosophy in their jurisprudence. A President's party affiliation is thus an accepted, if imperfect, proxy for the judicial philosophy of that President's appointees.

Those who hope to see our activist judiciary reined in are concerned with more than bottom-line outcomes in key cases; conservatives have learned to appreciate the judicial function itself. Having long criticized what they perceived as results-oriented decision-making by activist judges, conservatives have adopted as valuable ends in their own right, not different results, but different theories of constitutional interpretation. Today's conservatives may still yearn for the demise of Roe v. Wade, but their desire is likely animated as much by respect for "strict construction" or the "original understanding" of the Constitution's framers as it is by any pro-life sentiment.

President Bush now faces a difficult dilemma. His constituents will no doubt press him to appoint judges with a demonstrated commitment to the conservative judicial philosophy: restraint, traditionalism, strict construction, and so-called originalism. The Right is wary of well-credentialed "moderate" appointees with no discernible judicial philosophy, because such judges have often turned leftward when seated on the bench. For notwithstanding pop culture perceptions of lawyers as corporate "suits" the organized bar is an institution largely captured by the Left. Judges being human, those not committed to any legal philosophy tend to "grow" or "evolve" towards views more acceptable to the mainstream legal culture.