The Temptation of Judges

April 17, 1994|By GEORGE F. WILL

WASHINGTON — Like a vaudevillian whose pratfalls include slips on banana peels he strews in front of himself, President Clinton has done it again. Again he has diminished whomever he eventually nominates to fill a Supreme Court vacancy, by advertising the fact that he or she is not the president's first choice. Last time Mario Cuomo was; this time George Mitchell was.

Again the president is allowing the selection process to become so protracted that all the ideological, racial, ethnic and sexual lobbies can work up a robust sense of entitlement to the seat. Given the importance of California (and Florida and Texas) to the president's re-election plans, he may be looking for someone with a Hispanic surname.

That would please people who subscribe to the theory of categorical representation -- that people can only be properly represented by people of the same racial, sexual or ethnic category. That theory is pernicious when applied to representative institutions, and is doubly so when applied to judicial institutions. But perhaps the Supreme Court no longer is one.

In a republic, domestic policy is supposed to be made by elected representatives of the people. But as Professor Lino Graglia of the University of Texas law school says, for decades now the Supreme Court has been America's most important governmental institution. And the court's most important member during this period, Justice William Brennan, was -- although most Americans would not have recognized his name -- the nation's most important political leader.

The court has become the primary engine of government-driven social change, a superlegislature doing what it believes other legislatures, because of their obtuseness or cowardice, have neglected to do.

Court-propelled change has encompassed matters of life and death (capital punishment, abortion), the democratic process (reapportionment), public security (the rights of the criminally accused, government power to control vagrancy), public morality pornography, nudity), race (busing -- the assignment of children to schools on the basis of race), religion (banning school prayers and nativity scenes that threaten to establish religion), public discourse (rewriting the laws of libel and slander).

The nomination of ten consecutive justices by Republican presidents had a negligible effect on such legislative uses of judicial power. Why?

''If politicians are frequently tempted to venality,'' writes Professor Graglia, ''the professional temptation of judges -- overestimation of one's competence -- is even more dangerous . . . [Judges] are in fact among the least trustworthy of government officials. This is to be expected, since they are least subject to external restraints.''

The Constitution, combined with an ethic of judicial self-restraint, should be such a restraint. However, if judicial review were exercised in a restrained manner, to overturn only laws clearly incompatible with the Constitution's text, ''it would,'' as Mr. Graglia says, ''be exercised so infrequently as to be of little interest.'' And court nominations would not seem so momentous.

They are momentous because much of today's judicial activism arises from the justices' musings on two two-word phrases in an Amendment -- the 14th -- that was ratified 79 years after the Constitution was. The phrases ''due process'' and ''equal protection'' often are empty vessels into which justices pour their social agendas.

Judicial review based on those phrases frequently is merely applied moral philosophy -- that of the justices. Even if the justices are sublime moralists, which they rarely are, what they are doing cannot be called constitutional law. They are not rendering decisions based on a search for the Constitution's determinable historical meaning.

Rhetoric about the ''living Constitution'' is a license for justices to legislate. Hence President Clinton's enthusiasm for Mr. Mitchell, a highly accomplished and partisan legislator. However, is preposterous to suggest that a politician would be a novelty on the nation's highest bench.

It is said that Mr. Mitchell may want to be chief justice and will xTC park himself at the ball park, as baseball commissioner, until William Rehnquist retires. But will Justice Rehnquist, who seems in good health and spirits, step aside in time for the president to replace him with Senator Mitchell, an ideological opponent who in 1986 voted against confirming Mr. Rehnquist as chief justice?

Meanwhile, if Mr. Mitchell thinks managing Democratic senators has been strenuous, wait until he tries to get the 28 owners of major league teams to agree on the time of day. That task is, as the saying goes, ''like herding cats.''

George F. Will is a syndicated columnist.

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