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Judge Not

For once, it seemed to me, Gore overestimated Bush's intellect. If you believe W. has spent a lot of time calculating the "code words" of strict constructionism, you probably believe Gore's mother-in-law's dog is a lobbyist for the pharmaceutical industry. Consider the context of Bush's famous invocation of Scalia, under interrogation by Tim Russert:

Russert: Which Supreme Court justice do you really respect?

Bush: Well, that's--Anthony sic Scalia is one.

Russert: He is someone who wants to overturn Roe v. Wade.

Bush: Well, he's a--there's a lot of reasons why I like Judge Scalia.

Not exactly an enthusiastic, ideological endorsement. Later in the interview, as Michael McGough pointed out a couple of weeks back in the Pittsburgh Post-Gazette, things got even murkier:

Russert: Will your judges and judge appointments to the Supreme Court be similar to Scalia in their temperament and judicial outlook?

Bush: Well, I don't think you're going to find many people to be actually similar to him. He's an unusual man. He's an intellect. The reason I like him so much is I got to know him here in Austin when he came down. He's witty, he's interesting, he's firm. There's a lot of reasons why I like Judge Scalia.

This is the authentic, frat-boy Bush speaking. Scalia wasn't picked; he was rushed. Of course, this could all be careful positioning. Bush could be signaling to the fundamentalist right that he'll appoint anti-Roe justices while telling the rest of us he'll appoint justices entirely on merit. W. says he's against litmus tests, but don't they all? Didn't Reagan? In the debate, Bush challenged his critics to check out his judicial picks in Texas. Fair enough. In his six years, Bush has picked an unusually high number of judges--four state Supreme Court justices and more than 100 judges lower down. What does his record tell us?

It tells us he's a moderate, nonideological Republican. "They have uniformly been chosen for quality," Bill Powers, dean of the law school at the University of Texas, told The New York Times. "There has not been a litmus test. They are sort of middle-of-the-road on the court." Even liberal groups agree. According to the Times, Court Watch, a liberal watchdog group, found that by the 1998-1999 term, Bush's appointees were "eliminating the excesses of the GOP old guard." The newspaper Texas Lawyer did a survey last year of the quality of Bush's picks and reported that the only litmus test Bush seemed to use was character. Even the head of the Texas Trial Lawyers Association, hardly a bulwark of right-wingery, has stated that, while Bush is not as liberal as she would like, he has moved the court firmly back toward the center.

Abortion? This is perhaps the most surprising aspect of the story. Not only has the Bush court defended abortion rights, it has extended them. In a case last year that infuriated the religious right, Texas's Supreme Court ruled 6- 3 in favor of a 17-year-old's right to have an abortion without notifying her parents if a judge found her "mature and sufficiently well-informed." Three of the six were appointed by Bush. "It was shocking," Joe Kral, legislative director of the Texas Right to Life Committee, told The New York Times. " They've made it way too easy for doctors to perform secret abortions on minors without their parents being told," echoed Joe Pojman, director of Greater Austin Right to Life. Did Bush subsequently chew out the court? Nope. The governor's office remained strictly neutral. Moreover, all the justices personally screened by Bush before they were appointed have told reporters they were never asked about their position on abortion--merely about their broad judicial philosophy. Bush's picks have also been relatively diverse. He has chosen twice as many minorities as the last Republican governor; his Supreme Court picks included a former teacher, a disabled state judge, and a Hispanic. I'm sorry, but that is not the kind of record that sends shivers down my spine.

To be fair, there have been worrisome moments. The speed with which the court decided to hear the Texas Republican Party's 1996 request to deny the Log Cabin Republicans a booth at the state convention was way out of proportion to its usual torpor. Gay activists in the state suspect foul play. And the fact that Bush presided over a judicial swing to the center needs to be seen in context--he inherited one of the most ardently pro-business courts in the country. But, in general, the governor's record is relatively distinguished and moderate--more in line, oddly enough, with the kind of justices Bill Clinton has appointed than the kind we might expect from Gore if he continues his ultraliberalism in the Oval Office. If your rough guideline in this post-Clinton election is "same policies, no blow jobs," then Bush fits the bill on the judicial front at least as well as Gore does.

The truth, of course, is that even when presidents do try to appoint justices with a rigid ideological agenda, they find it very difficult. Only a few judges are sufficiently dogmatic that you can confidently predict their vote. But, in an evenly divided Senate in the post-Bork era, that kind of dogmatism usually spells death in the Judiciary Committee. And if we know one thing about Bush's temperament, it's that he is reluctant to fight high- profile, battles that alienate him from Democrats and Republicans. The best guess is that he'd pick moderate conservatives who sail through committee hearings and swing either way once they don the black robes. These are exactly the kind of justices--David Souter, Anthony Kennedy, Sandra Day O'Connor--who give conservative imprimaturs to such landmark liberal rulings as Roe v. Wade and Romer v. Evans.

Scared to death? Not really. My own hunch, for what it's worth, is that if Bush wins, the judicial activists gnashing their teeth in a few years' time will be ideological conservatives, not dogmatic liberals. That's what happened in Texas. Why wouldn't it happen in Washington?

Andrew Sulivan is a contributing editor for The New Republic.

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By Andrew Sullivan