OK, OK, maybe I'm getting a bit carried away. My dream of a Militant Moderate Caucus (even a third party!) shoving the hard-right Republican and hard-left Democratic leaders to the margins, fixing Social Security and health care, and listening to mainstream voters instead of special-interest screamers remains forlorn. But the bipartisan, May 23 deal among 14 mostly moderate senators to bring some sanity to the judicial confirmation process has promise.
The best thing about this deal is that it should deter President Bush from picking a fervent conservative ideologue for the Supreme Court. The second-best thing is that it should prevent future Democratic abuse of the filibuster and allow confirmation of any well-qualified conservative nominee who does not scare moderates and who would (to borrow from Bush's phrase) "not legislate from the bench"—in either a liberal or a conservative direction.
The third-best thing is that this deal has provoked such a frenzy of rage from liberal and conservative groups that it must make sense. The disproportionate caterwauling from conservatives reflects the fury of a minority faction whose drive for complete dominance has hit a roadblock erected by (among others) Sen. John McCain. Music to a militant moderate's ears.
This is not to suggest that Bush will or should be forced to choose squishy centrists such as Justice Anthony Kennedy or "stealth" nominees such as Justice David Souter for the Supreme Court. Some very solid conservatives are eminently confirmable. But the seven Republican signers to the compromise have put Bush on notice that if he chooses a conservative ideologue, he might just risk a thrashing both in the Senate and in the court of public opinion.
Such a thrashing would make one very lame duck of a president whose approval ratings are already sagging badly from the unpopularity of his Social Security initiative, his push for federal intervention in the Terri Schiavo case, and the carnage in Iraq, among other things.
In any Supreme Court confirmation hearing, Senate moderates—and many voters—will pay close attention to the detailed picture that will emerge of the nominee's published views, speeches, judicial opinions (if any), temperament, and candor under sharp questioning, amid blizzards of studies by supporters and opponents. Not to mention the unfortunate but predictable dirt-digging by opponents.
If the nominee comes across as a conservative ideologue, the seven Senate Republican signers might well condone a Democratic filibuster, and be in no mood to revive the "nuclear option" that they refused to support this week. Their message to Bush will be: Mr. President, don't expect us to wreck the Senate to put that character on the Supreme Court.
(For those who tuned in late, the nuclear option, which Republicans prefer to call the "constitutional option," would be an unprecedented parliamentary power play to ban all judicial filibusters by a bare majority vote, rather than the two-thirds vote required by Senate rules. Senate Majority Leader Bill Frist and Bush had hoped to do that this week. But the May 23 deal commits the seven Republican signers to denying Frist and Bush an outright majority, at least for now. It commits the seven Democrats to allowing votes on three previously filibustered nominees and to filibuster future nominees only in "extraordinary circumstances.")
On the other hand, Bush will—and should—win big politically if he chooses a nominee conservative enough to drive liberal groups nuts (not a hard thing to do), but not so confrontational or provocative as to scare moderates. Liberal groups would still mount Pavlovian attacks. But they would not (or at least should not) persuade the seven Democratic signers to betray their word. Especially since they know that such a betrayal would release the seven Republicans from their own commitment, bring on the nuclear option, and leave Democrats powerless to stop even far more conservative nominees.
Sure, the 14 "kicked the can down the road," as the cliche goes, and their deal could break under the strain of a Supreme Court confirmation battle. But an older cliche seems more apt: Why not cross that bridge when we come to it? Maybe Bush will be wise enough to choose a nominee who does not scare the moderate Democrats. Maybe he will even seek the Senate's "advice"—a word elided from the Constitution by many Constitution-thumping conservatives—as well as its consent. If he does both, there will be no more filibusters.
And sure, my distinction between fervent conservative ideologues and solid conservatives who don't scare moderates does not begin to capture the qualities of any particular nominee. But as several of the 14 senators have said in the context of the Democrats' vague commitment to filibuster a nominee only in "extraordinary circumstances," you know it when you see it.
One much-debated question is whether the more specific commitment to end the filibusters of three Bush appeals court nominees implicitly obligates the seven Democrats in the event that Bush tries to elevate one of the three, or someone just as conservative, to the Supreme Court.
The answer is no. The most obvious reason is that at least one of the three, California Supreme Court Justice Janice Rogers Brown, is about as "extraordinary" and confrontational a conservative ideologue as it is possible to imagine Bush choosing. There is much to admire about Brown, including some of her judicial opinions. But she has also launched rhetorically extreme attacks on many long-settled Supreme Court precedents. In two speeches, for example, she called the 1937 decisions upholding the Social Security Act and other New Deal programs a "disaster" marking "the triumph of our own socialist revolution." Compared with Brown, Robert Bork was a moderate.
Indeed, an effort to put Brown or someone like her on the Supreme Court—where she would be free to disregard the precedents she has attacked—would be a presidential kick in the teeth of moderate Republican senators. They might just kick back.
Justice Brown, Texas Supreme Court Justice Priscilla Owen (who was confirmed two days after the May 23 deal, by 56-43), and former Alabama Attorney General William Pryor appear to have been cleared for floor votes not because they were less controversial than the other filibustered nominees, but because they were more important to the White House. This distinction is arbitrary and unfair. But arbitrary distinctions are the stuff of compromise. Unfairness is a cost of the political blood sport that the confirmation process has become. And the unfairly filibustered nominees are hardly being sent to the unemployment lines.
One example of a solid conservative who would win Senate confirmation by a comfortable margin—despite opposition from the many liberal groups that have called him "extreme"—is the widely respected John Roberts. He was one of the nation's leading Supreme Court litigators before the Senate confirmed by a voice vote his nomination to the U.S. Court of Appeals for the District of Columbia Circuit two years ago; the Senate Judiciary Committee had approved him by 16-3.
More generally, the best hope for cutting back on "legislating from the bench" and other grandiose uses of judicial power is to look not for any particular judicial philosophy, but for the spirit of moderation and humility that is shared by some conservatives and liberals but hard to find among those driven by ideological certitude.
The traditional measures of judicial restraint are deference to the elected branches, faithfulness to the Constitution's original meaning, and respect for settled precedent. But these measures very often cut against one another in today's world. Roe v. Wade, for example, was a usurpation of legislative power unsupported by the Constitution's original meaning—but has become a settled precedent. The federalism-based decisions of recent years, in which the five more conservative justices have breathed new life into long-moribund restraints on federal regulatory power, override the judgments of the elected branches—but draw support from the original meaning of the commerce clause. The 2003 decision upholding the McCain-Feingold campaign finance law's more sweeping restrictions on political speech deferred to the judgment of Congress—but disregarded the original meaning of the First Amendment.
Moderates are notoriously wishy-washy, lacking the unwavering commitment to causes and principles in which passionate partisans take pride. But causes can devolve into obsessions. Principles can devolve into dogmas. And judges should be suspicious of absolutes, sensitive to competing values, and attentive to the cold voice of doubt. "The spirit of liberty," as the great Judge Learned Hand once said, "is the spirit which is not too sure that it is right."