Two weeks past Congress' spring break, Senate Majority Leader Bill Frist still could not “with certainty” fulﬁll his oft-repeated vow to squelch Democratic ﬁlibusters of President Bush's judicial nominations. Skeptics in his own caucus deny him the 51-to-50 majority (including the vice president's tiebreaking vote) he needs to execute a maneuver known as the “nuclear option” -- a parliamentary power play to sidestep Senate rules requiring 60 votes to end ﬂoor debate.
However tentative, such insubordination may seem startling. For four years, Senate Republicans have voted in virtual lockstep for each of the president's 214 court nominees. In fact, however, this ﬁrst-term harmony was the aberration -- a lull in a bitter Republican family feud that has ﬂared repeatedly since 1980, on the Supreme Court as well as on Capitol Hill and in the White House. Moreover, this internal Republican struggle has been the only front of the post-Reagan wars over the courts and the Constitution that has really mattered. Democrats and liberals have mainly watched from the sidelines, as the critical choices about what the Constitution means and who is picked to interpret it are made in clashes among contending Republican factions. Finally, at almost all times, the balance of power has rested -- as in the current arm wrestle over the “nuclear option” and in volatile Supreme Court decisions like the recent 5-to-4 vote to invalidate juvenile executions -- with centrists.
Not only the game but key players have remained the same. In 1987, moderate Pennsylvania Senator -- now Judiciary Committee Chair -- Arlen Specter delivered a critical vote against Robert Bork's nomination to the Supreme Court, thereby forcing President Reagan to send up a new nominee, Anthony Kennedy, whose libertarian leanings on privacy issues appeared “really very distressing” to the staffer who checked him out for then–Attorney General Edwin Meese. When President Bush bashes “judicial activists,” the Supreme Court justice most directly targeted by his scorn is the same Justice Kennedy. Kennedy infuriated social conservatives in 2003 by striking down state anti-sodomy laws and, in March, by writing the opinion exempting minors from the death penalty.
Prominent liberal court watchers have helped obscure these intra-Republican divisions by demonizing the current Court, claiming that it is far to the right of its predecessors. Hard-line conservatives hold a quite different view. As Justice Antonin Scalia caustically observed in a 1996 dissent: “The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.” Scalia here, writing for himself and Justice Clarence Thomas, excoriated a majority opinion by Reagan appointee Sandra Day O'Connor, a pragmatic conservative loath to disturb “settled understandings.” O'Connor was joined by all six of her remaining colleagues, including both Kennedy and Chief Justice William Rehnquist. Scalia cast the underlying difference in apocalyptic terms: not simply a dispute about one case but about competing “designs” for distinct constitutions -- constitutions so different that they are ﬁt for governing separate, mutually unrecognizable countries.
Scalia's fury parallels the intolerance, described in Thomas Frank's 2004 best-seller, What's the Matter With Kansas?, with which social conservatives marginalize heirs of last-generation pragmatic conservative Kansas Senators Bob Dole and Nancy Kassebaum as “RINOs” -- Republicans In Name Only. Not coincidentally, a recent mass e-mail from the activist Center for Individual Freedom aimed the same “RINO” slur at “spineless GOP senators” like Specter and John McCain for resisting the “nuclear option.” Scalia's purple dissents typically aim less at persuading his colleagues than at inﬂaming populist hostility against them -- for example, fuming that O'Connor's 1992 opinion upholding Roe v. Wade “cannot be taken seriously [by] anyone who can read and count,” or that Kennedy has “signed on to the homosexual agenda.” In terms reminiscent of Newt Gingrich's pre-1994 campaign to capture the House of Representatives by discrediting the institution itself as inherently corrupt, Scalia derides the Court as “nine lawyers” who have no “warrant” to be the “authoritative conscience of the nation.”
After the 2000 election, the Supreme Court's 5-to-4 Bush v. Gore decision seemed to showcase a dominant conservative bloc. But the ﬁve collaborators soon broke ranks. By July 2004, speaking to the Washington, D.C., chapter of the conservative Federalist Society, President Bush's ﬁrst solicitor general, Ted Olson, reiterated Scalia's mid-'90s lament. “Conservatives have every reason to weep,” he observed, having “lost virtually every signiﬁcant case that came before the Court” during the just-completed 2003–04 term. The mayhem was “all accomplished,” Olson noted, “by various combinations” of justices, with “great help especially from Justices O'Connor and Kennedy.”
However distasteful to the Federalist Society, the Court's ﬂuid and boisterous feuding has produced results tolerably close to the nation's political center of gravity. Indeed, in the current, sharply polarized era, the judiciary is the only one of the three branches where the proverbial center has held.
But it is precisely this big-tent Republican regime that President Bush committed to upend with his ﬁrst-term approach to judicial nominations. For public consumption, the president pledged to nominate “strict constructionists” who would interpret, not make, law. But for the ideological cognoscenti, administration speechwriters added the odd, coded wrinkle: that he would model his nominees speciﬁcally after Scalia and Thomas. Neither in theory nor practice are Scalia and Thomas “strict constructionists.” Scalia has quite candidly acknowledged, “I am not a strict constructionist, and no one ought to be.” Thomas would slash Congress' authority and unleash states to “establish” ofﬁcial religions. Both would overturn scores of long-established precedents on the basis of an “originalist” judicial philosophy that Rehnquist has mocked as reﬂecting a misguided “Ark of the Covenant mentality.” Scalia's and Thomas' esoteric doctrinal views are unknown to most Republican voters and, indeed, to most Republican senators. But they are well appreciated by the faithful cadre who yearn for “restoration” of a “Constitution in Exile” supposedly hijacked two-thirds of a century ago when the Supreme Court upheld New Deal reforms like Social Security and the National Labor Relations Act.
In effect, President Bush's Scalia-Thomas formula invited Specter and kindred colleagues to butt out of deliberations about the future of the judiciary. Will this remnant of moderates, libertarians, and pragmatic conservatives resist marginalization as RINOs? Have they returned from spring break newly primed to push back, in light of Republican leaders' botched stab at wresting control of Terry Schiavo's fate from the Florida courts? Perhaps this unprecedented and, as it turns out, unpopular maneuver will reinforce doubts about the underlying Bush-DeLay-Frist strategy of handing over full custody of the party's judicial agenda to social-conservative activists.
By keeping Senator Frist's “nuclear option” on the launchpad, Republican centrists have shown that they still have leverage. Time will soon tell whether they also have the will to maintain ideological balance on the Supreme Court and preserve a Constitution that they, and most Americans, can recognize and support.
Simon Lazarus is public-policy counsel to the National Senior Citizens Law Center.
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