Bush and the Stealth Justice

Bruce Ackerman, a professor of law and political science at Yale University, is the author of "The Failure of the Founding Fathers," to be published by Harvard University Press this fall.

In filling the Supreme Court vacancy left by Justice Sandra Day O’Connor’s resignation, George W. Bush will again find himself shadow-boxing with his father.

Fifteen years ago, when the elder Bush had his chance to nominate justices, he faced a strategic dilemma: His Republican right wing demanded ideological satisfaction, but the nomination of a hard-edged conservative risked defeat in the Senate. Only a few years earlier, Robert Bork, an outspoken conservative nominated by President Reagan, had failed to win confirmation in the Senate (in a bitter ideological battle), and Bush was determined not to repeat the experience.

So he perfected the art of the stealth appointment.

His two nominees, David Souter in 1990 and Clarence Thomas in 1991, had one thing in common: Neither had a clear track record. They had no articulated positions on most of the controversial constitutional issues of the day, and they failed to produce scholarship that made their likely judicial trajectories clear. Both could be presented to the Senate as blandly competent public servants. At the same time, the administration could assure conservative activists that the two would lead a right-wing revolution once they made it to the court.


As a matter of presidential politics, stealth was a tremendous success. Souter and Thomas both refused to tell the Senate anything genuinely informative about their legal views, leaving their frustrated opponents to sift the scant public record in search of a suspect paragraph or two. Like Souter, Thomas was sailing through the Senate until the personal attacks by Anita Hill almost derailed his nomination. It was personal morality, not stealth, that created his problem.

In retrospect, Souter and Thomas have turned out very different. Souter has developed into a moderate conservative in the tradition of John Marshall Harlan, the great dissenter to many of the activist decisions of the Warren court, but a firm believer in the right to privacy and due process of law.

Thomas, in contrast, has established himself as the most reactionary jurist of the modern era. He is the only member of the high court who claims that the New Deal expansion of federal regulatory power was a “wrong turn,” that the Constitution permits a state such as Utah to establish Mormonism as its religion, and that American citizens may be detained indefinitely on the say-so of the president.

These wildly different careers may subtly encourage President Bush to emulate his father’s strategy. Nominating another cipher would permit right-wing activists to imagine a Thomas, while liberals may glimpse a Souter, allowing the nominee to slip through.

But there is a larger question of principle involved. Stealth conservatives such as Souter promise the slow evolution of doctrine, but stealth reactionaries such as Thomas promise a radical revolution in constitutional law. These two prospects are not equivalent. If we are to have a constitutional revolution of the kind heralded in Thomas’ opinions, it should take place only after a broad national debate about its merits.

Reagan took this straightforward approach when he nominated both Bork and Antonin Scalia. And he was right: The Senate should not permit such a sweeping revolution to occur with a wink and a nod, destabilizing politics for a generation.

When Thomas first came before the Senate at the age of 43, he stonewalled the most obvious questions. He stated, incredibly, that he had never debated Roe vs. Wade with anyone, ever. When confronted with his signature on a telltale document denouncing abortion, he blandly denied having read it.

Serious professionals could not predict that he would squarely challenge New Deal-era court decisions that permit national government to regulate the economy and safeguard the environment.

To be sure, Thomas now stands alone on the court’s right flank. Even Scalia doesn’t come close. But the addition of one or two stealth revolutionaries would make a very big difference.

Despite the political temptations of stealth, Bush should lead with his strong suit: clarity of vision. He should either nominate a Bork II and lead the country in a great debate, or nominate somebody like O’Connor, with an established track record as a conservative pragmatist. Whatever he decides, the country will know what it is getting, and we will all be better for it in the long run.