A Bipartisan Judiciary Is the Democrats' Duty


September 10, 1991|By ANDREW BARD SCHMOOKLER

SILVER SPRING — Silver Spring. -- It is time -- indeed it is well past time -- for the Democrats to stop being such wimps about allowing this country's judiciary to enter a dark age.

The conservatives have handed them a tool with which the Democrats can assert their power as the dominant party in the Senate. That tool is the conservatives' ostensible commitment to ''strict construction'' of the Constitution.

Where in the Constitution does it say that the judiciary is to be the creature of the Executive, made in his image? Nowhere. The president is given the initiatory role in the naming of judges, but no one gets a seat on the bench until the Senate consents.

It is only custom that has said the Senate is obliged to give its consent unless it discovers some gross disqualification such as incompetence or moral turpitude.

When it comes to making the laws, it is the Congress that takes the initiative and the president that gives consent, or expresses his refusal with a presidential veto. No one seems to think a president must approve all laws except those that he finds incompetently written or grossly immoral. It is understood that he can veto a bill -- the civil-rights bill, for example -- simply because he does not like it and would prefer not to see it become law.

As a result, the Congress knows that -- unless a bill commands enough support in both houses to override a veto -- if it wants a law enacted it must compromise with the president's ideological and political perspective in fashioning its bills.

No such compromise, however, has been evident in the staffing of the federal judiciary and, most important, of the Supreme Court. While the Republicans have dominated the executive branch for most of the past quarter-century, the Democratic domination of the Senate has been no less continuous. But the judges bear the imprint of the conservative ideology of the executive, hardly modified at all by the more liberal values ascendant in the legislature. Why?

This is not a matter of presidential prerogative. Judges are not like cabinet appointees. The president's Cabinet are his own people, extensions of his will, responsible to him. Judges represent a separate, co-equal branch of government. The judiciary is supposed to be the creature of both the other branches.

If the president makes ideology the principal determinant of whom he proposes, the Senate is no less entitled to let ideology govern to whom it will give consent.

The need for the legislature to compel the executive to compromise ideologically is especially great in the current circumstance. For we seem to be entering a dark age of injustice, where a majority of the Supreme Court -- appointed by presidents beholden to the activist right wing -- worship at the altar of power, seeing themselves as agents of the already-dominant powers and classes of our society.

The special virtue of justice is that it serves as the antidote to the abuse of power. In a famous passage in Plato's ''Republic,'' one of the characters defines justice as ''the interest of the stronger party.'' But this describes what prevails naturally, in the absence of Justice to intervene with her blindfold and scales. This is precisely what we need justice to prevent.

Only in a system where power is constrained by justice do the weak and the downtrodden have any hope. When, as seems to be happening now in America, those into whose hands we place questions of justice are people whose identification is with the mighty and the favored, justice is in trouble.

These judges we've been getting lately do not represent the basically moderate mainstream of the American people. Rather,

they come from a current rather far to the right. The liberal-leaning Congress is at least as representative of the country as the recent conservative presidents.

Democrats in the Senate should insist on moderate appointees. The activists on the radical right might not like it, but their presumed strict constructionism forbids their arguing that custom should prevail over the language of the Constitution.

Andrew Bard Schmookler is the author of ''The Parable of the Tribes: The Problem of Power in Social Evolution.''

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