Presidential Politics and Judicial Appointments

EVERY year in late spring people rediscover the Supreme Court. Its daily decisions stir our passions, are discussed for a few days, and are then relegated to the back pages.

This year's excitement has been doubly intense; it's an election year, and the court has become an integral part of presidential campaigning.

Make no mistake about it, the Supreme Court is at a crossroads. Change a vote here or there and this term's decisions would have turned out differently. But it is a measure of how far the debate has already been skewed when pundits refer to the liberals as Justices Harry Blackmun and John Stevens - two judicial independents without serious ideological agendas, neither of whom recalls the recently departed Justices William Brennan and Thurgood Marshall.

It is even more frightening to think that those same pundits call Justices Sandra O'Connor, David Souter, Anthony Kennedy, and Byron White centrists. They may be the middle of the current court, but that's like saying they are moderately extreme conservative.

The court's move to the right has been unhealthy. It has stifled internal debate and reduced the legitimacy of some positions that are well within the mainstream of legal and political thought. Without a full range of opinion on both extremes, the justices' legal debates have been hollow. Apparently the left has no consistent proponent - only the occasional vote in the wilderness.

Thus it is critical in this presidential year that we listen to the position of the candidates. Do they propose to open or shut the debate within the court? Will they add ideological purists, open-minded judges, those with opinions, those who claim never to have thought about crucial legal issues? We ought to listen well to the candidates, for their views on the selection of Supreme Court justices matter a great deal.

We should not be misled into thinking that the issue is limited to the Supreme Court. The stakes are much higher. The entire federal judiciary has been reshaped by the appointments in the last 20 years, during which Republican presidents named every judge, except the few who sneaked in during the four-year Carter blip. The last 12 years have brought us a Reagan and Bush federal court system.

The legacy of Republican appointments is felt daily as the government is given greater license to do what it wants and individual rights and liberties fall to majoritarian politics. We have gotten much of what Presidents Reagan and Bush promised. One more appointment may complete the job.

Mr. Reagan and Mr. Bush could not have succeeded without the complicity of Democrats who have controlled the Senate for 12 years. Democratic senators could have kept the appointment process from becoming the sole ideological tool of the president, but they failed to exercise their power, save the rare Borkian episode.

The senators have preferred a "high road," refusing to "play politics" with judicial appointments. But who is kidding whom? Politics is at the core of every judicial appointment. It drives the president's nominations, and it ought to control the Senate's response. Until each nominee is weighed on a political scale and the Senate rejects a uniform ideology, balance in federal courts cannot be achieved. Politics in the judiciary is the rule, not the exception.

Federal judges are appointed for life. As we approach the election we ought to remember that a vote for the presidency is more than a four-year commitment; we vote for a lifetime of legal decisions.

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