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The current threat of nuclear war between Senate Republicans and Democrats over “conservative” nominees has generated massive publicity about the mechanics of governance. In some ways, the looming battle has been a useful civics lesson. Suddenly, everyone is learning (or re-learning) that judicial candidates are nominated by the president; that their nominations are considered by the Senate Judiciary Committee; that the committee votes on the nominees before sending them on to full Senate; that confirmation requires a simple majority; and that stopping a filibuster requires a three-fifths majority. But there has been relatively little publicity over the stakes. What exactly is a “conservative” judicial nominee? When is a conservative nominee still safely in the “mainstream,” and when does he or she stray into the unacceptable (or unconfirmable) “right wing” or “ultraconservative” danger zone? These are hard questions because there is no such thing as “conservative” jurisprudence. The notion of a monolithic school of “conservative” judicial philosophy is as illusory as a single “Boston accent.” It may sound plausible to outsiders, but insiders know better. Californians may think they can recognize a Boston accent, but those living inside Route 128 know that the citizens of Revere do not speak the same dialect as the residents of Beacon Hill, and that residents of Beacon Hill do not speak the same dialect as those of South Boston, and that none of them speak like the Kennedy family. (If you ask someone from South Boston about Sen. Kennedy’s oratory, he will tell you that the senator speaks Latin.) Liberals may believe, as Justice Potter Stewart did about pornography, that they know judicial conservatism when they see it. But they don’t. And for the same reason Justice Stewart didn’t. Liberals don’t spend a lot of time actually studying the subject. If they did, they would know that there is no such thing as a judicial “conservative.” Instead there are a variety of separate strands, tenuously bound around the “conservative” label, apt to unravel the moment the strands’ exponents begin talking to each other. The best known strand is the Originalist. They believe that a judge’s duty is to apply the law strictly, without injecting his own values or opinions. In interpreting the Constitution, judges should seek the original understanding of those who ratified the document. That means that even if the judge favors laissez-faire capitalism, he will uphold legislative intervention in the economy as long as the regulation does not impair rights clearly mentioned in the Constitution. Antonin Scalia, Robert Bork and Edwin Meese are well-known Originalists. A younger but growing strand is the Libertarian. The New York Timesrecently featured this school in a Sunday magazine cover story, in which the paper treated the Libertarians with the same kind of “how quaint and interesting!” enthusiasm English tourists show when they discover some charmingly primitive vacation spot. The author called this the “constitution-in-exile” school, a term apparently coined by Judge Douglas Ginsburg in a 1995 book review, but eschewed by Libertarians themselves. Libertarians look to the contracts and takings clauses of the Constitution as guaranteeing broad protection of property rights. In some ways, they represent the mirror image of the Originalists. Libertarians look at congressional action impairing property rights and ask: Why? Originalists look at the same congressional action and (unless they see a direct constitutional bar) ask: Why not? Richard Epstein and Eugene Volokh are academic representatives of this strand. Clarence Thomas and Janice Rogers Brown have occasionally expressed Libertarian sentiments from the bench. A third strand is the Religious. They believe in a fundamental constitutional right to life. They look to the Establishment Clause as permitting federal funding for vouchers. They believe that state court decisions allowing gay marriage interfere with the state legislatures’ police power to legislate over health, safety and moral issues. On the other hand, they believe that state legislatures have no right to discriminate against religious studies in providing state-sponsored scholarships. Pepperdine University’s Douglas Kmiec is an exponent of the Religious strand of conservatism. To liberals, all three schools of thought are “conservative.” And they react with undifferentiating hostility. In 1987, while Senate Democrats were grilling the Originalist Judge Robert Bork on his nomination to the Supreme Court, their staffers were scrutinizing Libertarian professor Bernard Siegan on his nomination to the Ninth Circuit. The two took fundamentally different approaches to the Constitution. Indeed, Bork would later devote a chapter of his best-seller, “The Tempting of America,” to refuting Siegan’s “constitutional revisionism” theories. But to the Senate Democrats, they were twins. (More intellectually sophisticated liberals like Laurence Tribe noted the difference. Tribe opposed Bork but did not oppose Siegan.) Both went down to defeat, subject to the exact same charge of being “outside the mainstream.” Ironically, if they were both outside the mainstream, they were on opposite banks. Since 1987, all three strands have grown and prospered, at least at the academic level. Liberal thinking dominates the law schools, but its very domination has had a stultifying effect. So while conservatives are a minority, most of the intellectual ferment and creativity in academia has been on the right side of the spectrum. The ferment generates conflict and controversy of its own. Originalist, Libertarian and Religious conservatives disagree, often heatedly, not just on constitutional issues but also on political and cultural issues. To Originalist and Religious conservatives, Roe v. Waderepresents everything wrong with American law. Libertarians are more concerned about eminent domain and trade restrictions; many support abortion rights and gay marriage. During the Terry Schiavo controversy, most Religious conservatives backed special congressional legislation to keep her alive. Originalists found the special legislation an unconstitutional encroachment on the power of the states. Once the law passed, Originalist, Libertarian and Religious conservatives all disagreed on how the courts should apply it. Indeed, the strongest evidence of the diversity of conservative thought today was the absence of any kind of united front during this highly charged and highly publicized legal controversy. To the extent President Bush’s nominees reflect these differing strands, they will vote differently on the bench. Which is why, in an ideological sense, there may never be a “Bush Court” regardless of how many Bush judges and justices are ultimately confirmed. But all this seems to be lost on Senate Democrats. Caught up in partisan fervor, they are deaf to the differences. When they talk about judicial “conservatives,” they mean — simplistically — jurists nominated by President Bush. And when they talk about “ultraconservative” or “right-wing” nominees, they mean jurists nominated by President Bush whom they believe they can block. Contributing writer Lawrence J. Siskind , of San Francisco’s Harvey Siskind Jacobs LLP, specializes in intellectual property law. He can be contacted at [email protected].

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