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“I’ll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy. . . . I believe in strict constructionists. And those are the kind of judges I will appoint.” –George W. Bush, Oct. 3, 2000 “We’ve got to get good, conservative judges appointed to the bench and approved by the United States Senate.” –March 29, 2002 “We need common-sense judges who understand that our rights were derived from God. Those are the kind of judges I intend to put on the bench.” –June 27, 2002 “The Senate has got a lousy record on my judges.” –Oct. 28, 2002 For the last two years, the Senate Democrats have gummed up the judicial nomination works. Now, thanks to the election, the Republicans are oiling the confirmation assembly line. And President George W. Bush is going to get exactly what he wants, judge-wise. Which is, apparently, a run of “common sense,” “conservative,” “strict constructionist” judges who don’t make “social policy.” Those are all lovely words that seem to make sense. Until I think about them. OK, “conservative,” I know, is supposed to rhyme with “not liberal.” But beyond that, is being conservative a method, a way to conserve literally what we have, without adding or taking away anything — at least, not from the bench? But then, does preserving the status quo include preserving all those touchy-feely Supreme Court decisions ingrained since the ’60s and ’70s? Or is being conservative a matter of substance? Does it mean the courts should do less to protect abortions and more to help ministers, cops, and soldiers? Or that government is always bad — so the bureaucrats and the jack-booted FBI agents must be tied up? And don’t the ideas conflict with each other? Can you really be a “common-sense judge” who’s also a “strict constructionist”? Common-sense judges, I guess, don’t think too much — they go with their gut. But strict constructionists would shoot themselves before deciding a case on personal intestinal preference. They spend lots of time thinking, and what they think about is ways to divine what the Constitution’s Framers would have wanted way back when, not what readers want today. Then there’s this: How can judges avoid making “social policy”? Bush says he’s pro-life. Lots of judges he likes are pro-life. You might even agree with him that the Constitution is pro-life. But any judge who holds anything one way or another about Roe v. Wade is, by definition, making social policy. Just ask the next desperate woman unable to get an abortion, or the next pro-lifer left mourning another lost life. Or think of it this way: If judges dealt with issues too trivial to count as social policy, no one would bother with the fight in the first place. HARD TO JUDGE All this really matters when it comes to judging — and especially when it comes to judging the novel cases that the administration has triggered with its post-Sept. 11 war on terrorism. To see why, consider an issue that I discussed in my last column (“ Looks Like Justice,” Oct. 28, 2002). There, I noted that two federal appellate courts recently decided whether the attorney general can unilaterally keep the public away from hearings to deport people suspected of having terrorist links. In one of the cases, Detroit Free Press v. Ashcroft, the 6th Circuit held that the First Amendment makes it unconstitutional for the attorney general to impose a blanket rule. In the other, North Jersey Media Group v. Ashcroft, the 3rd Circuit held the opposite. So which of these decisions should Bush like, if he’s true to his sound-bite philosophy? Presumably, he likes the one that agrees with his attorney general and closes the hearings for the good of us all. As the 3rd Circuit’s Chief Judge Edward Becker put it quite bluntly, “A real threat [to democracy] could arise . . . should the government fail in its mission to prevent another September 11.” But is that really a conservative view? After all, the First Amendment is pretty venerable — lots of people might want to “conserve” it. And don’t forget about those conservatives who hate big government — they tend to like the First Amendment. And even Republican moderates might see the wisdom of avoiding secret tribunals. As the 6th Circuit’s Judge Damon Keith wrote, “The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty.” Idaho is listening. And which decision is the strict constructionist one? “Strict constructionist” means someone who likes laws to be grounded in the Constitution, right? The First Amendment is based in the Constitution ( see U.S. Const. Amend. I). But where’s the constitutional basis for closing deportation hearings? In fact, even though Congress has a wide berth to do almost anything it wants when it comes to immigration, that power doesn’t arise from the text of the Constitution. As Judge Keith wrote, “This power was derived . . . from powers incident to sovereignty” ( see U.S. Const. . . . oops, it’s not there). UNCOMMON SENSE How about common sense? This is no joke — or maybe it is. Tell me how common sense should work out the following quandary: In order to determine whether a proceeding should be open to the public and the press, judges apply a test that looks in part at the “experience” of keeping that sort of hearing open. So what experience is relevant to the 3rd Circuit and 6th Circuit question? You could look back at the entire history of common law courts. But that would effectively shut out the First Amendment from most government hearings (since free speech rights made their appearance long after secret proceedings). Common sense can’t allow that. As Judge Becker wrote in the 3rd Circuit decision, “We agree that . . . a 1000-year history is unnecessary, and that in some cases, largely limited to the criminal context, relatively little history is required.” So it makes sense to look only at U.S. history, right? Not quite. The United States didn’t have many administrative hearings until relatively late. What sense does it make to look at history in a way that minimizes the role of administrative hearings, when the whole point of the “experience” exercise is to look at the relevant sort of hearing? Then what about looking only at the history of administrative hearings in America? Some hearings have always been closed, but others have tended to be open. So that framework might be accurate, but it’s inconclusive. That leaves the history of deportation hearings in America, which dates back to the 1890s. And here, the history is . . . ambiguous again. Congress has never guaranteed that deportation hearings will be open. But the relevant federal regulations state that “[a]ll hearings, other than exclusion hearings, shall be open to the public” except for some limited circumstances. Common sense, have at it. And consider another factor that the judges wrestled with. In addition to the “experience” test to determine whether the First Amendment applies, the courts also looked at the “logic” of opening deportation hearings. But how’s this for a monkey wrench in the common-sense gears: Do you consider the logic of opening deportation hearings involving potential terrorists only, or the logic of opening deportation hearings generally? If you go with the former, you’re with Judge Becker and favor closing the hearings. If you go with the latter, you’re with his dissenting colleague, Judge Anthony Scirica, and you want to let in the sunshine. POLICY HERE, POLICY THERE One last comment about the deportation cases: Judge Keith definitely made “social policy” in the 6th Circuit, no less than Judge Becker made it in the 3rd Circuit. In one place, the attorney general’s word does not automatically close the hearings; in the other, it does. Both results come from the bench. As to what the common-sense, conservative, strict-constructionist, non-social-policy way to decide these issues is, I don’t have a clue. And if they take their words seriously, I doubt that the president or his advisers have one, either. Of course, it’s also possible that all these words shouldn’t be taken literally, but are just a code for something else. Back in 1969, before he became an associate justice, William Rehnquist wrote to the then-attorney general that “[a] judge who is a ‘strict constructionist’ in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs.” That’s simplistic and outcome-oriented to the point of being crude — not at all representative of the sort of person that Bush says he’s seeking. Right, Mr. President? Evan P. Schultz is associate opinion editor at Legal Times . He can be reached at [email protected].

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