In certain quarters on both the left and the right, it is
conventional wisdom that everyone on George W. Bush's short
list for the U.S. Supreme Court is cut from the same ideological
cloth. For each pro-Bush pundit who paints all potential nominees
as mainstream, there is a Bush-basher who depicts them all
as radical extremists. The truth is far more interesting.
Compelling evidence of jurisprudential diversity among plausible
candidates for the Supreme Court can be found in the highly
charged dispute between two short-listers over the Interstate
Commerce Clause as applied to environmental safeguards. One
cutting-edge issue under the clause -- which empowers Congress
to regulate commerce "among the Several states"
-- is whether federal regulators may use this authority to
protect an endangered species that lives in only one state.
Judge J. Harvie Wilkinson III, a potential Supreme Court
nominee, authored an opinion rejecting a Commerce Clause challenge
to federal protections for red wolves in Gibbs v. Babbitt
(4th Cir. 2000). The wolves, originally found throughout
the southeast, currently live only in North Carolina. The
Gibbs court upheld the wolf protections as substantially affecting
interstate commerce because people kill the wolves to protect
commercial assets such as livestock and crops. Judge Wilkinson
also cited wolf-related scientific research and possible commercial
trade in fur pelts as establishing an adequate connection
to interstate commerce. Alternatively, he ruled the challenged
protections were sustainable as part of a comprehensive federal
program for the protection of all endangered species.
Fourth Circuit Judge J. Michael Luttig, also on the Supreme
Court short list, blasted the majority in a full-throated
dissent. The dispute between Luttig and Wilkinson was not
merely legal, but philosophical, and it brimmed with mutual
censure. Luttig charged the majority with casually ignoring
the Supreme Court's most recent rulings that cut back on the
scope of Commerce Clause authority.
In response, Wilkinson went for the trifecta, accusing Luttig
of undermining three core conservative values: federalism,
deference to legislative prerogatives, and respect for the
law. First, he excoriated Luttig for "turn[ing] federalism
on its head" by ignoring the longstanding role of the
federal government in protecting endangered wildlife. He then
accused his fellow short-lister of "rework[ing] the relationship
between the judiciary and its coordinate branches," and
"open[ing] the door to standardless judicial rejection
of democratic initiatives of all sorts."
Finally, Wilkinson leveled the ultimate reprimand for any
principled jurist, suggesting that Luttig's personal policy
preferences -- his "mere expression of judicial derision"
for the law -- drove his analysis. Describing the dispute
as a classic clash between landowners and environmentalists,
Wilkinson concluded his opinion by asserting: "Why the
judicial branch should place its thumb on either side of this
old political scale is simply beyond our comprehension."
There is little doubt whose thumb Wilkinson saw on the scale.
Whatever one might think of the respective positions espoused
by Wilkinson and Luttig, they demonstrate a striking dissimilarity
in judicial philosophy.
Another short-lister -- Judge John G. Roberts Jr. of the
U.S. Court of Appeals for the District of Columbia Circuit
-- created a stir by opining on the same issue. In Rancho
Viejo v. Norton (D.C. Cir. 2003), the court upheld federal
species protections as applied to a real estate developer
whose proposed housing project threatened endangered arroyo
toads. The panel had little trouble concluding that the commercial
housing development fell within the Commerce Clause power.
In dissent from a denial of rehearing en banc, however,
Roberts criticized the panel for focusing on the developer's
overall conduct rather than asking whether the specific activity
being regulated -- harming the toads -- is commercial or would
substantially affect interstate commerce. According to Roberts,
applicable Supreme Court precedent compels the latter inquiry.
Moreover, he viewed the panel's approach as in tension with
the Fifth Circuit, which used a much different rationale in
upholding federal species protections.
Needless to say, Roberts' dissent was not well-received
by the environmental community. But it should be viewed in
context. He did not express a position on the constitutionality
of single-state species protections, but instead insisted
that additional review would "afford the opportunity
to consider alternative grounds for sustaining" them.
And it is indisputable that federal appellate courts have
adopted different rationales in upholding these protections,
a relevant consideration in deciding whether to grant a full-court
Moreover, Roberts has shown a willingness to part company
with his more ideological colleagues. In Barbour v. WMATA
(D.C. Cir. 2004), a case implicating hot-button issues regarding
Congress's authority under the Spending Clause and Fourteenth
Amendment, Roberts broke from Judge David Sentelle, whose
dissent rejected rulings by eleven other circuits and concluded
that Congress may not condition acceptance of federal funds
on a state's consent to private damages suits for disability
discrimination. Roberts instead joined the opinion of Judge
Merrick Garland upholding the condition.
Former colleagues across the political spectrum have showered
bouquets upon Roberts, characterizing him as "possibly
the foremost appellate lawyer of his generation" and
"one of the two or three best lawyers I have see in more
than 30 years." They extol not only his intellect, but
also his balanced approach to the law. And his opinions are
blessedly free of ideological blather.
In stark contrast to Roberts' dulcet tones is the jarring
rhetoric of short-lister Justice Janice Rogers Brown, who
sits on the California Supreme Court and stands in a league
of her own. Her intemperate pronouncements include the assertion
that "today's senior citizens blithely cannibalize their
grandchildren because they have a right to get as much 'free'
stuff as the political system will permit them to extract."
She also has denounced the city of San Francisco as a "kleptocracy"
in which "private property is now entirely extinct,"
an assertion difficult to square with the million-dollar lofts
dotting that metropolis.
Far more disturbing than her rhetoric, however, are her ideas.
In an April 2000 speech to the Federalist Society, Brown praised
the infamous Lochner v. New York ruling, in which the
court invalidated a state health statute imposing maximum-hour
limits on bakers because it purportedly violated extra-constitutional
economic rights. She condemned the court's 1937 repudiation
of Lochner as "the triumph of our own socialist
revolution." She ridiculed the famous dissent penned
by Justice Oliver Wendell Holmes Jr. in Lochner as
"all too famous" and "simply wrong." She
criticized West Coast Hotel Co. v. Parrish (U.S. 1937)
-- which overruled Lochner -- as having "consumed
much of the classical conception of the Constitution."
In an August 2000 speech to the Institute for Justice, Brown
acknowledged that "the idea that there is an extra constitutional
dimension to constitutional law is heresy" among other
conservative legal theorists. Indeed, many conservatives have
denounced Lochner, including Robert Bork, Antonin Scalia,
Edwin Meese, and Orrin Hatch. In Brown's view, however, conservatives
need to overcome their "dread" of judicial activism.
Brown's supporters note she criticized Lochner in
a 1999 dissent, but they fail to recognize that in her August
2000 speech, she explained she previously disagreed with Lochner
but now supports judicial imposition of extra-constitutional
rights to promote limited government. And she has applauded
three recent regulatory takings rulings as holding "out
the promising possibility of a revival of what might be called
Brown's defenders also contend her views on Lochner
should be given little weight in considering her pending nomination
to the D.C. Circuit because, as a federal appellate judge,
she would be subject to review by the U.S. Supreme Court.
But this possibility of review is cold comfort because the
Supreme Court agrees to hear less than two per cent of the
certiorari petitions filed each year. And because a "Lochnerism-lite"
ruling (to use Brown's phraseology) can be disguised as a
decision under the Takings Clause or other constitutional
provisions, the need for review might not be readily apparent.
More to the point, whatever one thinks about putting a Lochner-ite
on a federal appeals court, the thought of putting one on
the U.S. Supreme Court should be nightmarish to conservatives
and liberals alike.
Brown also adheres to an extreme view of regulatory takings.
In her dissent in San Remo Hotel v. San Francisco (Cal.
2002), she wrote that any "restriction of any one of
the several rights that constitute private property in effect
takes that property," unless the restriction addresses
a nuisance or provides an offsetting benefit to the landowner.
This breathtakingly broad reading of the Takings Clause bears
no semblance to mainstream takings jurisprudence, and it threatens
myriad environmental protections, zoning laws, and other land
use controls. And because the Takings Clause applies to all
property (not just real property), her views endanger minimum
wage laws, pension plan protections, and many other community
protections. In articulating her approach, Brown cited with
approval the writings of radical legal theorist Richard Epstein,
who acknowledges his theories would invalidate vast chunks
of modern legislation.
After examining the respective records of those on the short
list, one is struck not by the similarities, but by the differences.
A real choice exists with respect to ideology, temperament,
and respect for the rule of law, if only our leaders in the
White House and the Senate have eyes to see it.
Timothy J. Dowling is chief counsel of Community Rights
Counsel, a D.C. public interest law firm that represents state
and local officials in constitutional challenges to environmental
laws and other community protections.