The Federal Courts and the Presidency

Editor's note. Wishing my son a happy 24th birthday. David, you are a blessing to mom and me.

"The whole name of the game is who will be the next president."
      Eleanor Acheson, an assistant attorney general for Clinton who oversaw judicial selections, quoted in Monday's USA Today.

"In U.S. appeals courts, Reagan's influence endures: Conservative appointees now a dominant force in the law," reads the headline for a piece written for yesterday's USA Today by Joan Biskupic. You wouldn't need to know that she'd written a syrupy, sympathetic biography of pro-abortion Justice Sandra Day O'Connor to know the drift of this article before you read it. You'd just need to have read most any of her pieces about the Court.

The conclusions found in Monday's article are self-evident in parts, over-stated in other parts, but certainly correct when she quotes from Acheson, who helped vet court appointments for pro-abortion President Bill Clinton: "The whole name of the game is who will be the next president."

The self-evident part is that President Reagan was more systemic than previous Republicans in making nominations to the federal courts. That, of course, did not prevent stealth candidates, such as O'Connor, from slipping through. But, by and large, the Gipper did a fine job.

Biskupic's article is largely about that intellectually stellar group and how its influence has only grown. "[N]early 20 years after Reagan left office, many of them are at the height of their power," she write. Assuming they were as bright as even she concedes they were, and had not left the bench that was inevitable.

She goes through a number of flashpoint issues, including abortion, about which some of these appointments have written, and draws the commonsensical conclusion that "Reagan's enduring legacy shows the power a president has in shaping the law -- not just at the Supreme Court, which gets so much attention, but also in the midlevel appeals courts."

Where she misses the boat is to acceptance patently false assurances that Bill Clinton "did not wish to expend major political capital with his court appointments," as University of Massachusetts Amherst political science professor Sheldon Goldman told Biskupic. This is to spin the truth to conform to an enduring and self-serving myth about Clinton's judicial selections.

Almost lost in the shuffle is the imprint President George W. Bush will leave by the time his two terms in office are complete. "President Bush has tried to reinforce Reagan's legacy and tapped young conservative thinkers," Biskupic writes near the very end. "Goldman says that has turned into 'a major success story for Bush.'"

Even when he first began campaigning, President Bush made it clear he was interested only in candidates for the federal bench to whom restraint was a virtue, not a vice. I was reminded of what the President repeatedly said when I read pro-life Senator John McCain's speech last week to students at Wake Forest University.

In one key section, McCain contrasted judicial activism from real activism. Real activists "seek to make their case democratically -- to win hearts, minds, and majorities to their cause," McCain said. "Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and activist judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that.

"They don't seek to win debates on the merits of their argument; they seek to shut down debates by order of the court," McCain continued. "And even in courtrooms, they apply a double standard. Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered 'settled law,' and everything else is fair game."

The Reagan/Bush/McCain philosophy of judicial restrain, I would suggest, merits praise and congratulations.

Please send your thoughts to daveandrusko@hotmail.com.