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Jewish World Review July 8, 2005 / 1 Tamuz, 5765

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The man Bush should nominate to replace O'Connor

http://www.NewsAndOpinion.com | The short answer is: J. Harvie Wilkinson III. A longer answer to the question of who President Bush should nominate to fill today's Supreme Court vacancy is: Constitutional law is rife with clashing certitudes generated by too-clever theories purporting to illuminate the one valid approach to construing the Constitution.

These theories obscure uncertainties inherent in all legal reasoning, and especially in construing a written Constitution in light of precedents produced by applying it in political contexts, and to controversies, unforeseen by its framers.

Many conservatives are rightly dismayed by exercises of judicial discretion so sweeping they resemble legislative willfulness, not tethered to analyses of the discernible intentions of the Constitution's framers, or of its text, structure, and yield of precedents. Undismayed liberals eagerly blur the distinction between legislative and judicial functions: Having lost much of their power to persuade electoral majorities, liberals seek success through litigation rather than legislation.

Liberals and conservatives, Wilkinson has written, differ about "the place of compassion in the democratic process." The human condition is prey to myriad misfortunes. "Victims of social circumstances, however, are altogether distinct from victims of another's violation of a specific legal duty. It is the job of the democratic process to ameliorate the effects of the former. It is the judiciary's charge to rectify the latter."

Dismay about abuses of judicial discretion drives some conservatives into a misguided quest for a jurisprudential holy grail — a theory of constitutional reasoning that will virtually expunge discretion from judging. This goal is chimeric.

Construing the Constitution should begin with what the document's pertinent language meant to those who wrote and ratified it. But construing can rarely end there. Historians continue to deepen our understanding of how varied and occasionally contradictory were the intentions of various framers and ratifiers. History always informs constitutional deliberations; it rarely is dispositive.

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The states that ratified the Eighth Amendment's proscription of "cruel and unusual punishments" included some that punished criminals with whippings, brandings and earcroppings. The Congress that in 1866 drafted the Fourteenth Amendment, with its guarantee of "equal protection of the laws," rejected a bill that would have ended school segregation in the District of Columbia.

Some judges profess a single explanatory theory for construing the Constitution, a doctrine that makes one value — majority rule, or limiting government, or minimizing judges' discretion — trump all others. Most such judges will flinch from following that doctrine to conclusions inconsistent with either a long line of precedents or the nation's current sense of justice. But flinching will not save such judges from being portrayed as willing to let severe logic lead the law to conclusions that the nation has decided are unacceptable.

Wilkinson's conservative sensibility makes him averse to what G.K. Chesterton called "the clean and well-lit prison of one idea." And Wilkinson's conservative temperament makes him comfortable with the subtle task of balancing judicial modesty with the judicial responsibility for refereeing, by constitutional principles, the government's behavior. And the public's behavior, too. Majority rule, to which the political branches are subservient, does not trump constitutional law. This provides a central drama of America's polity — judicial review. It is in tension with democracy, yet is indispensable if the Constitution is to limit government.

In Federalist 78, Alexander Hamilton said courts have a duty "to declare all acts contrary to the manifest tenor of the Constitution void." So one of the Constitution's most distinguished framers thought judges' discretion must extend to measuring governmental acts against their sense of the document's "manifest tenor." The inexpugnable role of judicial discretion demands of judges the virtue Wilkinson calls "modesty." That is a modest man's synonym for judiciousness.

Concerning the most important and vexing subject of constitutional law — racial equality — Wilkinson wrote a justly praised book, "From Brown to Bakke: The Supreme Court and School Integration, 1954-1978." In 1987, in a case concerning a "minority set-aside" program for Richmond contractors, he wrote the Fourth Circuit's opinion demonstrating how carefully circumscribed "race-conscience relief" must be in order to be compatible with the Constitution's guarantee of equal protection of the laws. In 1989, the Supreme Court endorsed the Fourth Circuit's ruling. The opinion affirming Wilkinson's reasoning was written by Sandra Day O'Connor.

The nomination of Wilkinson to fill her seat would be a splendidly clarifying act. Any senator's claim that Wilkinson is an "extremist" would be risible, and itself evidence of extremism.

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