The Bush administration finishes its first four months in office, the big legal news is that there is no big news. There have been some hopeful signs: the appointment of John Ashcroft as attorney general; the appointment of Theodore Olson as solicitor general. Both are distinguished conservatives, the former associated with the Burkean wing of the conservative movement, the latter with the free-market conservatives of the Federalist Society. Still, while the national press seemed obsessed with the Clinton pardon scandals, the Bush tax cut, and the possible meltdown on Wall Street, almost nothing was heard about the future of the federal courts under George W. Bush.
We can only hope that someone, somewhere, in the new administration is carefully screening potential judges, with the purpose of accomplishing what Bush père botched—the reestablishment of a federal judiciary with an actual understanding of the Constitution and the law. The last Bush administration did a creditable job with many of the lower federal courts, but failed miserably (because of the appointment of Justice Souter to the Supreme Court) to reverse the trend of the Supremes to be lawmakers rather than interpreters. The next appointment to the Supreme Court is the one to watch for, as are the appointments to the federal courts of appeals. During the campaign. President Bush said the right thing when he promised more Supreme Court justices like Antonin Scalia and Clarence Thomas, who believe that the only appropriate interpretation of the Constitution is the Framers’ intent. If this view ever regains ascendance, it would not only spell the end of a constitutional right to abortion, but would return questions of education, criminal law, and religion and morality back to state and local governments—where the Framers wanted them.
Among the ranks of the sitting federal appellate court judges (from whence justices are now chosen) there are superb potential Supreme Court appointments who would move us back toward the original understanding. Judges Edith Jones and Emilio Garza of the Fifth Circuit and Chief Judge J. Harvie Wilkinson of the Fourth are certainly possibilities. All three of these, however, might lead to a pitched battle in the Senate, which may now be Republican in name only; if—God forbid—anything happens to Strom Thurmond (while South Carolina has a Democratic governor), even RINO status will end.
Scalia is only on the Court because, for a brief time under Reagan, the Republicans controlled the Senate, and Thomas got through after one of the most bitter nomination battles in memory only because he was able to complain of a “high-tech lynching.” The Thomas nomination was Bush Senior’s finest hour, and we will soon be able to measure his son’s true constitutional mettle. The unscrupulous characters who opposed Thomas are still out there; while they lost the election and their attempts to overturn it, they haven’t given up. While it was understood that the Ashcroft confirmation was supposed to be a rehearsal for the real bloodletting that should occur when a Supreme Court justice is nominated, the forces of darkness seemed strangely blunted, since no tar stuck to the nominee—not even in the usual liberal media organs. Perhaps now—while the odor of the Clinton pardons lingers; while the Reverend Jackson is explaining his dalliances, his income taxes, and the federal funding of his organizations and their funding of his mistress; and while the new President continues to astonish his erstwhile critics by his unexpected competence—is the time for Dubya to deliver on his campaign promises about the Supreme Court.