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Booking the Bench

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Wattenberg: Hello, Iím Ben Wattenberg. The Republican Party has control of the Senate, the Federal courts need judges and President Bush has vowed to provide them. At the same time, the closely divided Supreme Court could see openings in the near future. Will the president get to nominate a new Supreme Court Justice? What are the cases and issues hanging in the balance? To find out more, Think Tank is joined by Terry Eastland, publisher of the Weekly Standard and author of Ending Affirmative Action: The Case for Colorblind Justice; and Jonathon Turley, professor of law at George Washington University. The topic before the house: Booking the Bench. This week on Think Tank.

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Wattenberg V/O: William Rehnquist has served on the Supreme Court for over thirty years, half of that as Chief Justice. During that time the court has handed down historic decisions on a wide range of issues: from statesí rights, to freedom of religion and expression. In recent terms, the court has pronounced on school vouchers, the death penalty, and even a presidential election. Many of those cases were decided by narrow five to four votes. In this term, the Court is set to review several high profile cases, among them challenges to affirmative action, cross burning and sodomy laws. In the past decade the confirmation process has become increasingly politicized. And itís not just the high court. Due to battles in the Senate, a significant number of lower federal judgeships remain open. Now that Republicans hold the reigns again, and several Supreme Court justices seem close to retirement, could we see an ideological shift all along the federal bench, from the Circuits to the highest court in the land?

Wattenberg: Gentlemen, Terry Eastland, Jonathan Turley, thank you for joining us on Think Tank. As I was working on this set-up piece, and realizing all the issues that the Court gets into, and really in a very decisive way, from freedom of religion to race to freedom of expression to sodomy laws, the whole shootiní match, I began wondering, did the framers understand how powerful the courts would be? Did they want a third branch of government that decided that much that definitively?

Eastland: No. I think thatís the short answer and the correct answer. I think the framers certainly invented this idea of a third branch of government, that was a new invention with the American Constitution. But it was anticipated that it would not have the power that it has assumed over the last two centuries.

Wattenberg: You buy that?

Turley: I think thatís right. I think James Madison particularly did not entirely view the courts as being an effective branch to balance against the political branches. I think he saw the legislative branch as being the constitutional core. And it was Marbury v. Madison where the Supreme Court essentially reinvented itself, created the type of institutional authority it would need to really bring these types of....

Wattenberg: Thatís the one that made judicial review a part of the system.

Turley: Thatís right. Itís a very elegant decision, it just happens to be a decision that is not entirely based in the text of the Constitution. The Supreme Court was just stating what it needed to function as a truly equal branch. And it was there that is sort of self-invented an institutional role that we see really played out recently.

Wattenberg: Governor George W. Bush campaigned in 2000 on the idea that he was a strict constructionist. In this day and age, what does that mean and is the current court as now configured are they behaving like strict constructionists.

Turley: Well, you know, I think that that is a really loose term and itís more politically loaded. I tend to actually have a fairly conservative view of how the Constitution should be interpreted and I suppose that comes closer towards the text, but a lot of the so called textualists or strict constructionists on the court are rather uneven in how they do that. You know, and an example is, you know, for the most part the conservative justices tend to stick more to the text but thatís not always the case. If you take something like the Fourth Amendment, itís the conservative judges that have often read exception into the Fourth Amendment, have found the language to be much more fluid. When I read the Fourth Amendment, it seems...

Wattenberg: Now which one is that?

Turley: The Fourth Amendment requires the government to have probable cause and often a warrant in order to search or seize a citizen, and amendments like that would seem clear to me have been really interpreted backwards and forwards to find exceptions. So unfortunately, the question of strict construction seems to sort of depend upon your political view at times.

Eastland: I would add to that, that this notion of strict construction that the President used, this a term that has been used all the way going back to Richard Nixon when he ran for office in reaction to the Warren court, and it is a difficult term to define exactly what it is we mean by strict construction. Do we mean that the judge or the justice looks strictly at the text and is strict in that sense, or that the text is perhaps illumined by the intentions of those who wrote and perhaps also ratified that text? That may be one definition of construction. I would prefer that there be some construction whether strict or loose, but I think we do see different approaches on this question. I would add this as well, that there are actually on this court varieties of conservatives. If you take a justice like Justice OíConnor for example, she would, you know, regulate to precedent and she is also the kind of judge that unlike Justice Scalia, she chooses rules, if you will, that might constrain what should would do in the next case. She always wants to be available if you will to decide the next case, and so her decisions are very narrow ones in their scope. She is conservative I guess in the sense that she came from a hand of a conservative President.

Wattenberg: What are the biggest most important cases that the court has handled in the last say, ten years or so? I mean in terms of peopleís everyday life?

Turley: I think the most important one if I was to pick one right off the top, it would be Lopez in Ninety five. That was the case in which the court really started or not necessarily started, but moved the federalism revolution as an agenda item, that is this court clearly signaled in the Nineteen Nineties that it wanted to re establish federalism as a principle, and that principle is that States really are supposed to hold the primary role of governance in our society. And even though um, I tend to have a sort of a liberal view on some issues, I tend to be a big fan of federalism, because the idea of federalism was that rights are safest when theyíre held closest to citizens, that citizens are in the best position to protect their rights and that state governments remain the pivotal point of government and itís a fascinating example of how this court has consistently fought and really resuscitated federalism.

Eastland: I think thereís an interesting point here. This is an area, federalism, where the critics of the Renquist court have said it has been activist, particularly because in numerous cases, almost all of these cases, weíre talking about laws of Congress that are being struck down, and because that is so, Chuck Schumer, for example, the Senator from New York, heís been very upset about this line of cases, but you have to ask yourself, is it activism when the court enforces the Constitution? I think the answer to that is no. I mean, if you can find a rule in the Constitution, that is the big question. The court is doing its duty to enforce that rule if that means striking down a law of Congress. The difficulty, for example, in these commerce clause cases as you know Jonathan, itís a very difficult clause to interpret, but essentially it had been emptied of any meaning by the court through the Nineteen Forties, and so this is an effort on the part of Justice Rehnquist and others on the court to actually say, look, this has got to mean something.

Wattenberg: Terry, I gather the big new issue thatís coming up in this term it is once again affirmative action.

Eastland: Itíll be back. It is back.

Wattenberg: You have written, itís with the University of Michigan a couple of cases, is that right? Could you sort of tell us what they are about and where they fit in and what you think is gonna happen, and Jonathan, you add in please.

Eastland: Right. Well, Iíll try to describe it briefly, but the University of Michigan, the undergraduate school as well as the law school had admission policies in which race and ethnicity are considered, they would say as factors, in terms of deciding who should be admitted to the two schools. These policies are similar to ones that are carried out throughout the country. They were challenged by different individuals and the cases had moved up to the courts through the Sixth Circuit, at least one of them has, and now theyíre in the Supreme Court. The court has been asked on several previous occasions in fact to reconsider the ruling in Nineteen Seventy, the landmark Bakke ruling in which the court struck down an admissions plan used in the University of California Davis even as the court did say that it is possible for schools to take race into account in the choosing the selection of a student body. That opinion has been controversial. It is controversial politically.

Wattenberg: And itís been sort of trimmed back over the years, hasnít it?

Eastland: Well, I would not say that. Actually, itís been jettisoned by one court of appeals in particular of the Fifth Circuit, but that issue is squarely before the court right now. This is the question, in constitutional law that itís an equal protection case. An equal protection doctrine requires that any time government, and Michigan is a government, classifies on the basis of race, that it has to pass what is called strict scrutiny, and under that you have to have a compelling interest, and the compelling interest that Michigan asserts is the diversity rationale. In other words, weíre doing this to have educational diversity in the classroom, and thatís squarely at issue.

Wattenberg: And thatís right. How do you think itís gonna turn out?

Eastland: Well, Iíve changed my mind several times about this Ben. I think that it may turn on Justice OíConnor and how she sees this. There are five votes on this court perhaps for saying that diversity is not a compelling interest in constitutional law, and if itís not, then the Michigan program cannot survive but neither can any of the other programs across the country because theyíre all bottomed really. Theyíre all based...I would be surprised if itís any different at your school. Theyíre all based upon the diversity rationale.

Turley: Well, my schoolís without sin. (laughter)

Wattenberg: There are no quotas of any kind at George Washington?

Turley: Well, itís after all, itís called the George Washington University so it has to be beyond reproach.

Wattenberg: Oh, I see.

Turley: But, you know, the interesting thing is that theyíre returning to a morass of their making here. I mean, Bakke is just a curious opinion where you have the court first saying, look, you got to have Bakke go back to medical school. Heís got to get in. What you did was wrong. But then, you know, youíve got the court going further in saying, and this is a split decision saying, you know, diversity can be, you know, an issue, so race can be considered as an element. Well, the question is we know whatís impermissible but whatís not permissible. We know you canít have quotas, but how much weight do you put upon this element. Well, in the Michigan cases, the weight is a lot heavier than theyíve suggested.

Wattenberg: Michigan actually has what in the federal government was called race norming. Donít they...I mean, after two separate pools of students, whites and non whites I guess, and they ranked the candidates and then they blend them numerically.

Turley: Yes, but what happens is numerically youíre given twenty points on the issue of race. Thatís eight more points than you get for the LSAT. Or, Iím sorry, in the undergrad on the SAT, and so thatís pretty significant. Most people view the SAT as the objective basis, but also the difference given at Michigan is the difference between an A student and a B student, and so a B student is given the same weight because of that element.

Wattenberg: A black or Hispanic B student gets the same treatment as an A student whoís white.

Turley: Thatís right.

Wattenberg: Or Asian.

Turley: And so, for example, in Texas, when the Texas case first went up to the Supreme Court which they declined, the difference was significant. You had white students that were in the ninety percentile where African American students were in the fifty fifth percentile in terms of scores. So thereís clearly a great deal of weight, a determined weight being given, so the courtís going to have to come back and just deal directly with what it failed to deal with in Bakke and that is, is diversity enough?

Wattenberg: What about campaign finance reform which I guess is not going to be in the Supreme Court or at least not right away. Well, how is that going to go?

Eastland: Well, youíre speaking of the McCain-Feingold legislation. Itís been challenged on free speech grounds. Money being speech, as it is said. Itís hard to know how the three judge panel that is now hearing that is going to decide. It will be expedited.

Wattenberg: This is on the Court of Appeals?

Turley: Right.

Eastland: Whatever the decision is, it will be expedited. Itíll go up to the Supreme Court and if it gets there this term, my sense has always been just given recent precedence in this area that the court would probably sustain the challenged provisions, but itís going to be very close.

Turley: Yes, thereís some live wires there. I mean the requirement that you essentially create a PAC if youíre going to really get involved in advertising for example. Youíve got eighty groups involved in that case. It is an army of attorneys, and you have groups like ACLU opposing. I wouldnít predict that the entire thing was upheld. I would agree with Terry that I think that this court is inclined to uphold generally these issues and we just have to look at those specific decisions.

Wattenberg: To uphold the campaign finance reform?

Turley: To uphold it generally but thereís still individual provisions that they could lose a majority on, things like the restrictions on advertising, the requirement being...

Wattenberg: On the freedom of speech issue?

Eastland: Well, bear in that mind that the first decision in this area goes back to Buckley and that was a badly split decision, and the court really struggles to find majorities in this area and it will do so again.

Wattenberg: And what about the sodomy case thatís coming up? That seems to be a big one.

Eastland: Well, yes...go ahead.

Turley: Well, I think it is a huge one. You know, youíve got a case in which these two guys in Texas were found...there was a false police report. The police come in, find them having consensual sex, and in Texas itís one of those...

Wattenberg: In flagrante delecti.

Turley: That would be it. And in Texas itís one of those states that actually prohibits certain forms of sexual contact between members of the same sex but permits it for members of the opposite sex. Now I look at that statute and I just say, there is just something so wrong with that on a dozen different levels, and I think the courtís going to agree with that, but whatís interesting is that this is the first case that the court can revisit the Hardwick decision, and in that decision the court...and it was a decision by Whizzer White who said that a state could effectively criminalize and prohibit homosexual contact, and itís been very controversial ícause he relied on things like Judeo-Christian traditions and things like that in his opinion, and this is gonna be the courtís revisiting of that but weíre a different society in some regards now. I mean, I think that homosexuality now is much more accepted. Itís not acceptable for necessarily the majority, but itís much more known. Whatís interesting with Hardwick, is it was a five-four vote and Powell later said that he regretted his vote.

Wattenberg: But he was on the five side?

Turley: Yes, and he said that he would have voted differently, that he regretted it later.

Wattenberg: Is it likely that in this term there will be an opening for President Bush to appoint or attempt to appoint a Supreme Court Justice, and where are the likely vacancies coming?

Eastland: The smart betting is that there will be at least one.

Wattenberg: Which would be who?

Eastland: Well, Justice Rehnquist, the Chief Justice would be a strong possibly as would Justice Stevens and Justice OíConnor. Now the reason I mention those three is if you look at the average length of service by a Supreme Court Justice in modern times, those three have either matched or exceeded that average length of service. They also happen to be the oldest members of the court.

Wattenberg: How old is Stevens? Eighty two.

Eastland: Eighty two I believe. And so what Iím saying is just, you know, actuarially, mathematically, however you want to describe it, I mean, these would be the likely candidates. I also think this. I think that Justice Rehnquist, heís a Republican, heís proud to be a Republican. I think he would like to step down when there is a window of opportunity to step down and this would be one. If he waits until 2004, surely that vacancy will be caught up in the middle of a campaign. It could even be put over to 2005, so I think that this would be the time to do it.

Turley: Oh, I think itís absolutely right, that if he intends to resign, he needs to do it now because if it gets close to the presidential election...

Wattenberg: But that one would not likely be terribly controversial because heís a conservative and Bush would likely appoint the conservative.

Eastland: If theyíre trading a conservative for a conservative, itís not...itís not...

Wattenberg: Conservative for a conservative, but if Stevens leaves, thatís where it would hit the fan, wouldnít it?

Eastland: And OíConnor I would say too.

Wattenberg: And OíConnor because sheís sort of a split vote.

Turley: But particularly Stevens ícause he has become an icon, in terms of left.

Wattenberg: Heís sort of the new Brennan, isnít he?

Turley: Yeah, but whatís interesting about Stevens is that actually, you know, Iíve been a critic of Stevensí opinions in some cases, but actually heís becoming actually better with time and in terms of his opinions, his opinions are incredibly powerful of late.

Wattenberg: By the time heís Strom Thurmondís age, you can really tell probably.

Eastland: He also...Iím going to say this, he also does think of himself as a Republican, and that might...I mean, I know justices are not supposed to be political but this does play into their minds, I think, when they decide when to step down, and it cannot escape notice up there that we do have a Republican senate right now, so government is not divided as between the presidency and the senate. Heís of the same party and this would be a moment where, certainly in Rehnquistís view, someone perhaps with his philosophy would get through.

Wattenberg: What about these fights for confirmation of the lower court judges, when the Democrats had control of the White House and the Republicans had the senate, the Republican senate wouldnít confirm and now you have the opposite and now the Republicans are back. Have both parties been equally guilty on that or is there sort of...I know some Republicans who say, oh, the democrats have been doing it much worse than we ever did. Does that resonate?

Eastland: Well, as between...you know, the allocation of blame here, I might say that the Democrats have been slightly worse but it would only be by a very small amount. I would say that there really is no debate. There should be no debate that is over the pace at which the Democrats have been confirming or did confirm district judges. Thatís very comparable to what the Republicans did. Thatís not the issue. The issue has been at the Courts of Appeals and there the circuit judges...I think there is a problem. Itís been in both parties. The committee when held by Republicans or Democrats have not held hearings in a reasonably timely fashion. I think once you have a nominee...

Wattenberg: Purposely, in order of not...

Eastland: Purposely often just to delay and delay until such time is perhaps say, you run out of time.

Wattenberg: But in the more recent case when the Democrats held control of the Senate, the idea was to delay it so that they could wait for a Democratic president to appoint someone not so conservative...or even Bush to appoint someone not so conservative.

Eastland: Yes, I think in this case what had happened with the Democrats, they wanted to try to at least delay or block actually if they needed to vote against judges to such an extent that the President would finally compromise on judicial philosophy and starts naming some individuals who might not...

Wattenberg: Yes, well, you know, when you think about it, I mean, I guess Senator Schumer makes that point that he thinks that the members that the committee and the Senate should judge by ideology. Thereís nothing wrong with that, and I know conservatives usually like to say, no, no, itís just merit, itís judicial temperament and whatever, but when you think about it, I mean, particularly with so much of such import being decided by the court, I mean, whatís wrong with judging by ideology?

Eastland: I donít object. I would not object to a senator, and in the Constitution, a senator may use any criteria to judge and Iím questionable that itís prudent or wise as a general rule to start doing that. I think generally speaking, I would say itís not, but I would say there may be occasions where it would be necessary to think about that.

Turley: I also think that as you go up in the level of federal courts from the federal magistrate to district court to court of appeals, ideology becomes more important because the relative authority of those judicial positions becomes more important, and when you get to the Supreme Court ideology becomes enormously important because itís the final court. It can change a society as...as it has in things like Brown v. Board of Education. It can change it for the better or in other cases for the worse, but you know, the framers specifically just gave the authority to the senate, did not restrict it, did not give them, you know, instructions, on what basis upon which they would confirm and so it is clearly under the Constitution a political decision. Itís political because it is not restrained, and in that sense itís always been a certain element of ideology. I mean, if you go back even in the Seventeen Hundreds and Eighteen Hundreds, if we think our politics are raw now, I mean it isnít anything in comparison to what the Federalists and the Jeffersonians used to do to each other.

Wattenberg: But let me ask you this just to sort of wrap up. Letís assume for the moment that Chief Justice Rehnquist does retire. What would the legacy of his court be?

Turley: Thatís a really interesting question.

Wattenberg: I want a really interesting answer.

Turley: Iíll do my best. I think that the most important aspect of his legacy will be the federalism revolution. I think that he will be remembered for leading the federalism revolution and realizing a very important part of the Constitution. When he was in the minority, those were things that he continued to rally for and he ultimately has his day, and so I think heíll be remembered for that. On the negative side, I think that his court will be remembered as a deeply divided court, a court that was viewed as very political and very ideological, and I think that that will cut against the legacy in some regards.

Eastland: I would agree uh, with Jonathan about the federalism of Justice Rehnquist. That has been a preoccupation of his. It was when he was first nominated to the court. It was in early opinions he wrote. Seventy six, for example, there was a federalism case where he wrote in. I think that uh, that would be one of his main accomplishments. Likewise I also think that the Equal Protection Clause jurisprudence, where he has not written the major opinions. I think certainly heís been important in...

Wattenberg: Now, and what an example of an equal protection case be?

Eastland: Well, what I mean by that for example, in Nineteen Eighty nine the court took a case called Crowson, City of Richmond against Crowson and what was at issue were set-asides that the city gave in the construction industry and they were done on a basis of racial quota, and the court took that case and in the opinion written by Justice OíConnor, we come back to her, she said that, look, thereís one equal protection clause that applies equally to whoever you are regardless of what race you are. There are not two different equal protection clauses, one that applies differently in the case of race over here and differently in this case over here, and those standards were set then. They were then elevated to the federal scene in a Nineteen Ninety five case. State and federal both obligated in the same way, and weíre gonna see with this Michigan admissions case whether this carries over there.

Wattenberg: And so that Michigan admissions case in that whole line of thought may end up being a large part of Rehnquistís legacy.

Eastland: It would be huge one way or the other.

Turley: One of the interesting things about Rehnquistís legacy is also, and this may be pejorative for some people, and that is, he will be viewed as part of the courtís movement to kill a concept called stare decisis, that there was a time when the court tried to preserve traditions. They resisted changes. And when he was just an associate justice, Rehnquist was the most open. It was actually shocking and during the Garcia, you know, combination of cases where Rehnquist basically said, Iím in the minority right now. Iím on the four side of a five-four split, but itís not gonna stay that way. Many people were shocked by that language and many thought it was the death of stare decisis and I think that will play to the view that this was a deeply ideological court, a very political court. I donít think thatís fair to some extent, because I think that his credit for the federalism changes is a deeply philosophical issue. I donít think that it is ideological in that sense, and it can legitimately be credited to him, and thereís literally no one on the court that could take credit for that movement but William Rehnquist.

Wattenberg: Okay. Thank you Terry Eastland, Jonathan Turley, and thank you. Please remember to send us your comments at Think Tank at PBS.org. For Think Tank, Iím Ben Wattenberg.


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Additional funding is provided by the Bernard and Irene Schwartz Foundation, the Smith Richardson Foundation, the John M. Olin Foundation, and the Lynde and Harry Bradley Foundation.

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