As appears in Human Events, August 2001

Judge Robert Bork, the U.S. Supreme Court nominee who was demonized by U.S. Senate liberals in a classic 'litmus-testing' process, properly warned of the danger of the "political seduction of the law." The important place that the law enjoys in American political theory is grounded in public confidence. When citizens no longer believe in the impartiality of our judges and the legal process, the carefully crafted system of checks and balances that our nation's founders designed is in peril.

Despite the partisan and frankly false claim that a slender majority of politically driven Supreme Court justices delivered up the presidency to George W. Bush despite the wishes of the electorate, most Americans appear to know better. But that could change. The claim that politics, not law, determined the outome stuck only with a strident but vocal minority comprised of Gore stalwarts like Mary Francis Barry, the chairwoman of the U.S. Civil Rights Commission and Laurence Tribe, a professor at Harvard Law School, and others close to Democratic presidential nominee Al Gore.

In a continuation of Gore's take-no-prisoners post-election strategy, his acolytes have begun to poison the judicial well. For example, Tribe testified before the U.S. Senate in June, saying, "With a Supreme Court that is already so dramatically tilted in a rightward direction, anything less than a concerted effort to set the balance straight would mean perpetuating the imbalance that gave us not only Bush v. Gore, but the myriad of decisions in the preceding half-dozen years in which the court thumbed its nose at Congress and thus the American people."

Party sages, Democrats and Republicans, have cautioned against Tribe's strategy. For example, both Lloyd Cutler, who served in the Clinton administration, and C. Boyden Gray, who served in the senior Bush's administration, have both condemned the ideological testing of judges. "To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one," said Cutler. "That is not only wrong as a matter of political science, it also serves to weaken public confidence in the courts."

Gray agreed. "The key criteria for a potential judge is not ideological, but philosophical and constitutional: Does the nominee have the integrity to recognize the limited role of a judge and leave the legislating to legislators?"

All this seems lost on U.S. Sen. Charles Schumer (D-NY), who has announced plans to 'limus-test' Bush judicial nominees based on specific issues rather than on overall judicial temperament in his new role as chair of the Subcommittee on Administrative Oversight and the Courts. It is difficult to conceive of a more wrong-headed, destructive approach to selecting those who will preside over our legal process. In Schumer's case, his opposition votes against Attorney General John Ashcroft and Solicitor General Ted Olson were based in part on his pet issues -- gun control, abortion rights, race-based quotas, and zealous government regulation of the private sector.

Issue-based litmus-testing of judicial nominees was decried by liberals when allegedly conducted by conservatives. Consider, however, that it was a Democratic-controlled U.S. Senate that scorched Bork and personalized its attack on Clarence Thomas. In any case, and under any circumstances, litmus-testing of judicial nominees subjects the process to the transient politics of issues rather than an examination of judicial temperament.

It is worth reiterating a civics truism about our system of government. The legislature makes the laws, the executive branch through the President and his administration enforces them, and the judiciary interprets them through the lens of the U.S. Constitution. Judicial activism disrupts this order by empowering and encouraging judges to legislate from the bench instead of merely interpreting what is required by the Constitution and the laws enacted by Congress. To paraphrase James Madison, the courts are to exercise not the will of men, but the judgment of law.

Testing the ideology of judicial nominees is important only if we take the view that, as Gore, Clinton, Tribe, Schumer and their fellow partisans do, judicial lawmaking is proper. It is not. As President Bush continues to send federal court nominees to the U.S. Senate for "advice and consent," and nominates perhaps two or more Supreme Court candidates, the winds of politics will blow hot over the process. How Senators respond, and the legacy of nominees they confirm or reject, will determine whether we accept or reject an independent, constitutional judiciary.

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