A Judicial revolution.(COMMENTARY)

The Washington Times (Washington, DC), November 12, 2002 | Go to article overview
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A Judicial revolution.(COMMENTARY)


President George W. Bush's 2002 midterm campaign for Republican Senate candidates featured anguish over Democrat implacability to his impec-

cable federal judicial nominees.

The sinning of the nominees, in the eyes of scheming Senate Judiciary Committee strongmen Patrick Leahy, Vermont Democrat, and Charles Schumer, New York Democrat, was thinking too much and too trenchantly about the law. Just as the intellectual ancestors of these two zealous solons cherished the geocentric over the heliocentric vision of the universe, so Mr. Leahy and Mr. Schumer abhorred the prospect of enlightened judicial reconsideration of intellectually decrepit constitutional precedents and doctrines.

That darkness was lifted from the brow of the federal judiciary last week when the Republicans captured the Senate and control over the Judiciary Committee's agenda. Waiting in the queue for confirmation to federal appellate courts are disciples of President Ronald Reagan's judicial pantheon, including John Roberts, Miguel Estrada, Mike McConnell, Carolyn Kuhl and Priscilla Owen.

What counts vastly more than their number is their razor-sharp mental acuity. Of the 167 federal appellate judgeships, incumbents without strong philosophical convictions predominate. They are generally persuadable at the cutting edges of the law and in the application of old axioms to new conditions. But their persuasion away from inculcated orthodoxies taught in law school and in professional circles requires powerfully crafted and brilliantly conceived counterarguments. That is where the Bush nominees excel; that is why they aroused fright in the likes of Mr. Leahy and Mr. Schumer.

The Reagan judicial legacy speaks volumes. He populated courts of appeals with brilliant thinkers versed in the arts of persuasion. The U.S. Court of Appeals for the District of Columbia Circuit alone shined with likes of Robert H. Bork, Antonin Scalia (later elevated to the Supreme Court), Laurence Silberman, Kenneth Starr, James Buckley, Raymond Randolph, Douglas Ginsburg, and Stephen Williams. Once a hyperliberal bastion of sociological engineering lead by Judges David Bazelon and J. Skelly Wright, the District of Columbia Circuit was transformed overnight into a voice of authentic judging. Circumspection over poaching on power constitutionally lodged elsewhere became its sine; and, unflinching defense of constitutional rights secured against majority rule became its cosine.

Other courts of appeal were also studded with Reagan judicial gems, such as Alex Kozinski of the 9th Circuit, Jay Harvey Wilkinson, chief judge of the 4th Circuit, Danny Boggs of the 6th Circuit, Ralph Winter of the 2nd Circuit, Pasco Bowman of the 8th Circuit, and Richard Posner and Frank Easterbrook of the 7th Circuit, veritable legal geniuses. The Reagan judicial impact has been profound. In 1980, to question racial or ethnic preferences or affirmative action was constitutional heresy. Now, it is orthodoxy. Then, mandatory busing for school desegregation was de rigueur. Now, it is a museum piece.

As the Reagan decade opened, the Fourth Amendment was riddled with technicalities that foiled convicting the guilty.

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