as the law dictates. Thus, the tvvo first witiiessesrn— Lloyd Cutler, White Houserncounsel to Jimmy Carter and Bill Clinton,rnand Boyden Gray, White Houserncounsel to the first President Bush andrnpresumably an advisor to tlie second —rnseemed to surprise Senator Schumer atrnthe first of these hearings, held June 26,rnwhen they argued that it was wrong tornconsider ideology in judicial selection.rnCutler and Gra-, as spectacularly accomplishedrneminences grises, were allocatedrna whole panel to themselves, thernopening act in the Washington mini-drama.rnPerhaps the second panel at thernhearing (of which I was a member) wasrnmore what Senator Schumer desired.rnThree of our panelists — Marsha Creenberger,rnco-president of the NationalrnWomen’s Law Center; Laurence Tribe,rna Harvard law professor; and Cass Sunstein,rna law professor at the Universit}’ ofrnChicago —testified that ideolog}’ did indeedrnmatter, and that it was the job of thernSenate to make sure that no single ideolog)’rnwas allowed to dominate the bench.rnThis was a not-too-veiled way of warningrnGeorge W. Bush that, if he thought hernvas going to appoint judges like AntoninrnScalia and Clarence Thomas (as he hadrnpromised on the campaign trail), he hadrnanother think coming. Professor Sunsteinrneven went so far as to say that, in hisrnview, a bench composed only of Scaliasrnand Thomases would he a ven.’ bad thing.rnThe terror of Scalia and Thomas, ofrncourse, is that they have been most aversernto the notion that judges ought to makernridings according to their personal understandingrnof appropriate social policy.rnThey liavc clearly espoused a conceptionrnof the judicial role as subservient to thernlegislative branch and to the peoplernwhen the law needs to be changed andrnhave argued that fiie only appropriate interpretivernstrateg)’ is to follow the originalrnintent of the Constituhon or statutes. Allrnof these beliefs are now virtual!}’ anathemarnin the legal academy, where studentsrnleam that we have a “living Constituhon”rnsubject to judicial manipulation, andrnthat the insight of such “legal realists” asrnOliver Wendell Holmes, Jr., and JeromernFrank (that judges inevitably must play arnlegislati’e role) gives judges a great opportunib,’rnto formulate new social rules.rnThe ‘iews of the academv were thosernof the majority of the jusdees of both thernWarren and Burger Courts, and thosernN’iews led to the federal courts, in particular,rndictafing state and local polic in areasrnof education, aborhon, religion, affirmativernaction, criminal procedure, andrnlegislative redistricting. hi the waningrnyears of the 20th centur}’, the RehnquistrnCourt began to show signs of cuttingrnback on the authorit)’ of the federal governmentrn(parficularly the courts) and returningrnthe Constitution to the originalrnunderstanding, in which state and localrngovernments were the primary lawmakersrnfor our nafion.rnThe Framers believed that liberty wasrnbest ensured if judges did not make lawrnand if the goxernnients closest to the peoplernwere entrusted with the greatest policyrnroles. Three of us on the second panelrn(myself, Eugene Volokh of the UCLrnLaw School, and Clint Bolick of thernWashington-based histitute for Justice)rntried to remind Senator Schumer and hisrncolleagues of these beliefs, arguing t h a t -rnfar from being threats to libert)’—Scalia’srnand Thonias’s views were the only way ofrnactualh’ preserving tlie kind of poliHcalrnsystem the Framers envisioned. The Republicanrnsenators on the subeonmiitteern—notably Jeff Sessions of Alabama —rnclearly got the message, while SenatorrnSchumer, Marsha Greenbergcr, and ProfessorsrnTribe and Sunstein did not. Forrnthem, alas, law seems to he politics byrnother means, and even though the President’srnparty lost control of the Senate,rnsomething like horse-trading will be thernmeans of picking judges. (“You give us arneoiple of Warrens and Brennans, we’llrnlet you have a Scalia and a Thomas.”)rnThere is something to be said for that approachrnwhen staffing panels for hearings.rnThere is nothing good to be said for itrnwhen selecting judges, at least if von wantrna government of laws, not of men.rn(Exlitor’s note: l he full text of Dr. Preiser’srnwritten testimony before Senator Schumer srnsubcommittee is available at v’ww.ChroniclesMagazine.rnorg. Jrn— Stephen B. PresserrnT H E PUTIN-BUSH MINI-SUMMITrnwas considered by most Moscov’ punditsrnto be a success, with the two more or lessrnagreeing to disagree about ABM, nuclear-rnmissile defense (NMD), and NATOrnexpansion—for now, anywav. PresidentrnBusli did not pressure VladimirrnPutin about Chechnya, but one pointrnthat he ever-so-gently raised did irk thernLittle Colonel, according to Kremlinrndeep diroats, whose frequent reports createdrnthe impression that the Kremlinrnwalls arc about as impregnable as an eggrncarton. The Americans just won’t let gornof the ‘1adimir Gusinsky affair.rnChronicles readers know the real story:rnThe “media magnate”/oligarch/gangster/rnprofessional Jewish victim Gusinskyrnwas the big loser in the intra-Kremlin intriguesrnthat accompanied Boris Yeltsin’srnretirement, with rival clan structuresrnclose to Yeltsin (“the family”) ultimatelyrnwinning the battle to choose Boris I’srnanointed successor. After “the family”rnhelped arrange a splendid little war inrnChechnya to boost his electoral prospects,rnex-KGB officer Putin immediatelyrnmoved to finish off “the Goose,” with thernKremlin exerting pressure on natural-gasrnmonopoly Gazprom to call in its loans tornGusinsky’s Media Most company, whichrncontrolled Russia’s onh’ privately heldrnTV station, N’lV. The “special services”rntacked on a few embezzlement chargesrnand other trimmings for good measure,rnand Gusinsky was soon an oligarch-in-exile,rnhis media a.ssets being absorbed byrnKremlin-iriendly “businessmen.” Fnd ofrnstor’, right?rnWrong. The Goose, you see, has powerfidrnfriends, being a mover and shaker inrnthe World Jewish Congress, an Israeli citizenrnwith ties to “Russian-speaking” TelrnAviv mafiosi and polificians, and a businessrnpartner of the Washington Post andrnof the establishment weekly Newsweek.rnHe also has a few close friends in the U.S.rnCongress, most notably Rep. Tom Lantosrn(D-CA). The congressman’s ties tornthe Goose go back to the mid-1990’s,rnwlien Lantos first rose to defend Gusinskyrnfrom the 1995 attacks of Yeltsinrnbodyguard Aleksandr Korzhakov, whosernKremlin security goons were roughingrnup the Goose’s soldiers. (Think of Korzhakovrnas Yeltsin’s Lucca Brazzi.) l^antos,rnan Hvmgarian import who, like manyrnothers, has made a career out of beingrna professional “holocaust sur ivor,” instantlyrnsaw the wicked hand of Russianrnfascism —and not the equivalent of arnChicago gang war—behind the attacks.rnCongress duly passed a resolution in supportrnof “businessman” Gusinsky, andrnYeltsin later fired Korzhakov.rnMeanwhile, tlie Goose—possibly tliroughrnLantos —was busy networking in thernLand of the Free. Lantos’ ally in Congress,rnDon Bunker, retired to the greenerrnpastures of lobbying (he works for the p.r.rnand lobbying firm APCO) and tookrnGusinsky as a client. Gusinsky gainedrnanother close personal friend in RobertrnStrauss, a former ambassador to Russia,rnhead of the U.S.-Russia Business Council,rnand partner of the law finn/lobbvingrnSEPTEMBER 2001/7rnrnrn