Appoint a constitutional conservative (San Francisco Chronicle) July 15, 2005

It’s not enough anymore to describe someone’s political views as conservative. Now we must add adjectives to the term, giving us social conservatives, economic conservatives, neoconservatives and traditional conservatives, just to name a few.

When Republican Sen. Orrin Hatch, a member of the Judiciary Committee, says the president is going to appoint a conservative to the U.S. Supreme Court, what does he mean? Or when 40 percent of Americans recently told Gallup pollsters they believe the court should move in a more conservative direction (compared to 30 percent who want a more liberal court), which direction is that?

The Terri Schiavo case illustrates that one brand of conservatism is not like another and how those differences could affect a Supreme Court appointment. Social conservatives — who seek to enact a conservative social and cultural agenda through government — succeeded in getting Congress to pass and President Bush to sign an extraordinary bill creating special federal court jurisdiction over this one case. Round-the-clock vigils by Christian activists and other social conservatives urged federal courts to intervene in what many traditional conservatives considered a personal, family decision.

But then the social conservatives met a constitutional conservative on the federal bench, Judge Stanley Birch of the U.S. Court of Appeals in Atlanta. Birch rightly did not even address the ideological questions others were pressing in Schiavo vs. Schiavo, holding instead that our Constitution did not allow congressional activism to create special federal court jurisdiction in this one case. He said that the Congress and the president had acted “in a manner demonstrably at odds with our Founding Fathers’ blueprint for governance of a free people — our Constitution.” This conservative judge, appointed by President George H.W. Bush, said that ruling otherwise would violate the Constitution’s requirement of a separation of powers and would cause him to be one of those dreaded activist judges.

No crowds cheered for Judge Birch. Sadly, three’s not much more of a lobby for the champions of constitutional processes. But I submit that Birch, in his decision in the Schiavo case, demonstrated the kind of conservative President Bush should appoint: a constitutional conservative. We need judges whose primary agenda is to conserve the processes of government laid out in the Constitution, and who are willing to let the political chips fall where they may.

Standing in review of the passions and whims of the legislative and executive branches of government in a nonpartisan, nonideological way is precisely the role of the founders of our republic conceived for the judicial branch. In No. 78 of “The Federalist Papers,” Alexander Hamilton spoke of the courts as “the bulwarks of a limited constitution against legislative encroachments.” Foreshadowing the role of Judge Birch in the Schiavo case, Hamilton said the judiciary must be on guard when “a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions of the existing constitution.”

If, as expected, President Bush appoints some kind of conservative to the court, which type will he choose? That is devilishly difficult to predict, because President Bush’s policies seem to draw from all these varieties of conservatism. His neoconservative advisers and tendencies take him into expansive foreign policies and federalized education programs that traditional conservatives oppose. His social-conservative roots and supporters seem to guide his thinking on the right to live and the role of religion in government policy. The president’s history of lower court appointments and his own statements — that he has no “litmus test” and seeks judges who will “faithfully interpret the Constitution” — suggest he is a constitutional conservative in the judicial appointment arena.

If the nominee is a constitutional conservative, his or her views on that most divisive of all topics, abortion, may not even be known. And if President Bush is serious that there is not litmus test, “don’t ask, don’t tell” might be the order of the day on such matters. Happily, a constitutional conservative judge might have any other kind of personal political views — neoconservative, social interpreting and defending constitutional processes.

Come to think of it, why not Judge Stanley Birch for the U.S. Supreme Court? You heard it here first.

This op/ed appeared on Page B-9.