President Bush, many of us believed, was preparing to appoint a set of jurists committed to the rule of law to the federal bench, but this has been thrown into doubt by Senator Jeffords leaving the Republican party. One of the immediate results of that move, which threw committee control of the Senate to the Democrats, was a set of hearings presided over by New York’s senior senator. Democrat Charles Schumer, on what he called “ideology” and its role in judicial selection.

Orthodox legal thinkers believe that ideology plays no role in judicial selection, because the only criteria that should be considered when selecting judges are their character, their knowledge of law, and their commitment to deciding cases as the law dictates. Thus, the two first witnesses—Lloyd Cutler, White House counsel to Jimmy Carter and Bill Clinton, and Boyden Gray, White House counsel to the first President Bush and presumably an advisor to the second — seemed to surprise Senator Schumer at the first of these hearings, held June 26, when they argued that it was wrong to consider ideology in judicial selection.

Cutler and Gray, as spectacularly accomplished eminences grises, were allocated a whole panel to themselves, the opening act in the Washington mini-drama. Perhaps the second panel at the hearing (of which I was a member) was more what Senator Schumer desired. Three of our panelists—Marsha Greenberger, co-president of the National Women’s Law Center; Laurence Tribe, a Harvard law professor; and Cass Sunstein, a law professor at the University of Chicago—testified that ideology did indeed matter, and that it was the job of the Senate to make sure that no single ideology was allowed to dominate the bench. This was a not-too-veiled way of warning George W. Bush that, if he thought he was going to appoint judges like Antonin Scalia and Clarence Thomas (as he had promised on the campaign trail), he had another think coming. Professor Sunstein even went so far as to say that, in his view, a bench composed only of Scalias and Thomases would he a very bad thing.

The terror of Scalia and Thomas, of course, is that they have been most averse to the notion that judges ought to make ridings according to their personal understanding of appropriate social policy. They have clearly espoused a conception of the judicial role as subservient to the legislative branch and to the people when the law needs to be changed and have argued that the only appropriate interpretive strategy is to follow the original intent of the Constitution or statutes. All of these beliefs are now virtually anathema in the legal academy, where students learn that we have a “living Constitution” subject to judicial manipulation, and that the insight of such “legal realists” as Oliver Wendell Holmes, Jr., and Jerome Frank (that judges inevitably must play a legislative role) gives judges a great opportunity to formulate new social rules.

The views of the academy were those of the majority of the justices of both the Warren and Burger Courts, and those views led to the federal courts, in particular, dictating state and local policy in areas of education, abortion, religion, affirmative action, criminal procedure, and legislative redistricting. hi the waning years of the 20th century, the Rehnquist Court began to show signs of cutting back on the authority of the federal government (particularly the courts) and returning the Constitution to the original understanding, in which state and local governments were the primary lawmakers for our nation.

The Framers believed that liberty was best ensured if judges did not make law and if the governments closest to the people were entrusted with the greatest policy roles. Three of us on the second panel (myself, Eugene Volokh of the UCLA Law School, and Clint Bolick of the Washington-based Institute for Justice) tried to remind Senator Schumer and his colleagues of these beliefs, arguing that—far from being threats to liberty—Scalia’s and Thomas’s views were the only way of actually preserving the kind of political system the Framers envisioned. The Republican senators on the subconmiittee—notably Jeff Sessions of Alabama—clearly got the message, while Senator Schumer, Marsha Greenberger, and Professors Tribe and Sunstein did not. For them, alas, law seems to he politics by other means, and even though the President’s party lost control of the Senate, something like horse-trading will be the means of picking judges. (“You give us a couple of Warrens and Brennans, we’ll let you have a Scalia and a Thomas.”) There is something to be said for that approach when staffing panels for hearings. There is nothing good to be said for it when selecting judges, at least if you want a government of laws, not of men.