'Moderates' V. Madisonians

During the Second World War the allies used "bomber streams," sending so many bombers so rapidly over a particular point on the ground--sometimes 40 or more per minute--that German air defenses were overwhelmed by the profusion of targets. Now comes, for a similar reason, President Bush's "judicial-nominee streams," as he begins trying to fill, in the teeth of flak from Senate Democrats, 101 vacancies on federal courts.

So it is time NEWSWEEK readers became acquainted with a tentacle of the Vast Right-Wing Conspiracy that may hitherto have escaped their notice, but that recently has been in the news and soon will be even more so. Actually, it is about as conspiratorial as a steam calliope: its members sometimes even wear identifying neckties, emblazoned with little silhouettes of James Madison. On a single day a few weeks ago the society was the subject of stories in The Washington Post ("Federalist Society Becomes a Force in Washington") and on The New York Times's front page ("A Conservative Legal Group Thrives in Bush's Washington"--how is that for a revelation?).

The society, which is indeed an important source of appointees for Bush's administration, has 25,000 members nationally and a well-staffed Washington office. The society sponsors a full calendar of conferences on legal topics, but unlike the liberal (on abortion, gun control, racial preferences, etc.) American Bar Association, does not take stands on policy questions. The society resulted from spontaneous combustion in the nation's law schools among students discontented with the prevailing liberal orthodoxies of professors like... well, consider Bruce Ackerman.

An excitable academic at Yale's law school, Ackerman will be a prominent voice in the chorus claiming to represent moderation against the "extremism" of Bush's nominees. To rally the forces of moderation, as he understands it, he may lobby Democratic senators, who may not be familiar with his flamboyant theorizing. A measure of his moderation is his argument that the Senate should refuse to confirm any Supreme Court nominees "until the American people return to the polls in 2004." Ackerman dislikes the outcome of the 2000 election, and of all the Florida recounts, and he especially dislikes the U.S. Supreme Court's role in preventing Florida's Supreme Court from making Al Gore president.

He approvingly cites the action of the Senate after Lincoln was assassinated, an event Ackerman considers analogous to Florida's voting against Gore. The Senate said that because John Wilkes Booth, not the voters, had made Andrew Johnson president, retiring justices should not be replaced, and they were not.

Given that Ackerman is not bashful about reading judges less radical than he is out of the jurisprudential "mainstream," consider Ackerman's moderation as expressed in his theory that the Constitution can be amended without reference to the two ways of amending stipulated in Article V (by two thirds of both houses of Congress and three quarters of the states, or by a constitutional convention). There are, Ackerman says, extraordinary constitutional "moments" when Americans shed the apathy of ordinary politics and cause the political branches to do things so special (read: so liberal--the New Deal, the Great Society) that they should be treated as effectively attaining the status of parts of an amended Constitution. That is, (liberal) public opinion trumps constitutional text.

However, Richard A. Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School, is, to say no more, unpersuaded, saying Ackerman's flight of theory is, "in the language of academic criticism, a tour de force. That is to say, it is ingenious and unpersuasive," lacking "any grounding in considerations of social need or political feasibility." Posner notes that the logic of Ackerman's theory is that if a law should--because of energized public opinion--have been enacted, but for some reason (say, a filibuster) was not, the Supreme Court should enforce that "law."

Why, wonders Posner, "invite judges to discover constitutional amendments written in invisible ink"? Posner suggests Ackerman's real reason:

"Ackerman would place a superhuman burden on the courts. It would be their task to identify constitutional 'moments' and to determine which aspects of them are possessed of constitutional dignity. Indeed, since Ackerman is the only person to have identified these moments, he is the only person in the United States fully qualified to sit on the Supreme Court."

Ackerman and his novel constitutional doctrine (call it Ackermancentrism) are important only as symptoms. They illustrate the nature of those whom sympathetic or credulous media will call "moderates" as they hurl charges of "extremism" at followers of that firebrand James Madison, a.k.a. the Father of the Constitution. But what is about to begin is, unlike Ackerman's theorizing, serious.

It is now clear that American politics turned a corner into a new era of contentiousness 14 years ago when the Senate rejected Ronald Reagan's nomination of Robert Bork to the Supreme Court. No serious person questioned Bork's academic, intellectual and jurisprudential credentials. And the Senate had twice confirmed him for high offices, as U.S. solicitor general, and as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, probably the most important court other than the Supreme Court. He was rejected because of his sterling credentials.

Bork was, and is (he is on the board of trustees of the Federalist Society), a particularly powerful advocate of judicial restraint grounded in strict construction of the Constitution's text, read in light of the Framers' intentions. This was, and is, intolerable to some muscular factions--supporters of racial preferences, completely unrestricted abortion, etc.--that understand their limited political support and thus prefer advancing their agenda by litigation rather than legislation. Hence the coming clouds of flak.