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The right conservative

July 17, 2005

The decisions made by President Bush and the Senate in the next few weeks as they seek a replacement for Supreme Court Justice Sandra Day O'Connor are likely to affect decisions by the court for decades. Though Chief Justice William H. Rehnquist's announcement that he will remain on the court means Bush won't get a package deal, the decisions on O'Connor's successor alone will change American life forever, in ways one cannot begin to predict.

As we have said before, the Constitution gives senators both the right and the duty to make an independent judgment on the president's nominees. They should not allow themselves to be cowed. But what can opponents of Bush's nominees do -- and what should they do -- when the president's party controls the Senate?

It is easier to say what they should not do. They should not throw up their hands and say, "Well, we had an election and the Republicans won. Let Bush have whomever he wants. We can't stop him anyway. And if voters don't like this result of their own folly, maybe they will vote differently the next time."

The Supreme Court may follow the election returns, as the cliche has it, but only at a distance. Political support for a liberal activist court ended around 1970, but the life tenure of justices and their tendency to surprise the presidents who nominate them have combined to put off the seemingly inevitable conservative triumph. If that triumph happens now, as seems likely, another reversal may take another couple of generations, no matter how much the voters suffer from buyers' remorse.

Despite the makeup of the Senate, it is wrong to suppose that any effort to influence Bush's choice of a nominee or to defeat an undesirable choice is hopeless. Justices have life tenure, but senators do not. These are votes they will have to defend at reelection time. That gives liberals and moderates, in the Senate or not, limited leverage. Not enough to hope for a liberal or moderate nominee probably, but enough to raise the interesting question: What should a liberal or moderate look for in a conservative Supreme Court justice?

The answer you hear a lot these days is: a pragmatist, like O'Connor herself. Someone who eschews ideology and looks for the practical solution or the solid middle ground. Unfortunately, perhaps, we are trapped by a belief that pragmatism is for politicians, that judges should be guided by a philosophy, and that liberals are not likely to practice or advocate moderate pragmatism when it is their turn to pick judges again.

But "conservative" can mean several things in a Supreme Court justice. It can mean one who believes strongly in stare decisis, the legal principle of not overturning established doctrines. Liberal enthusiasm for stare decisis in a conservative era is suspiciously convenient. If Earl Warren had embraced stare decisis, we wouldn't have had Brown vs. Board of Education. A second meaning of "conservative" in a justice is one who believes in and practices strict construction -- that is, who reads the Constitution narrowly and is reluctant to overrule the decisions of elected officials. A third meaning is someone who is more than happy to use the Constitution to advance a conservative political agenda -- a conservative judicial activist.

The kind of conservative that non-conservatives should prefer is the strict constructionist. A conservative activist can put conservative doctrines into the Constitution, where they cannot be dislodged even by an objecting majority. Almost every conservative politician and potential judge claims to be a strict constructionist. But many tend to forget this when issues they hold dear are at stake. The noisy conservative outrage over the court's recent decision not to interfere with the local government power to take private property by eminent domain -- and the four votes of the high court minority that favored the activist approach -- are a prime example.

When you don't have many chips, you've got to spend them carefully. Opposing any conservative Bush might appoint is futile. Blocking a conservative activist would be limited influence well-spent.

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