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Sharpening Their Clause: The Coming Bush Judges

May 30, 2005

Only days after the Senate reached a tenuous compromise to preserve the judicial filibuster, it appears the first Supreme Court vacancy of the Bush era may be imminent. AP reports that Chief Justice Rehnquist is preparing to step down and that the White House is already preparing to nominate his successor.
There is an emerging consensus regarding the leading contenders for Bush's first Supreme. (Jeffrey Rosen in The New Republic provided a thorough run down last fall.) More important than the horse race, though, are the signals the Bush selection makes about the direction of the Court, especially when it comes to abortion and states' rights cases, among others.
While all eyes are focused on reproductive rights issues, Rosen argues that the critical battlefield will be over the scope of federal regulatory power. Digging into the potential "strict constructionists" who might be on the administration's short list, Rosen emphasizes the importance of the doctrine of the "Constitution in Exile."
In a nutshell, Constitution in Exile (CNE) advocates argue that the Court since the New Deal has broadly and mistakenly applied the Commerce Clause, enabling a dramatic expansion of federal regulatory power not just in the economy, but into a range of social issues. The result according to CNE is not only illegitimate federal power, but the unconstitutional delegation of Congressional roles and authorities to a panoply of administrative agencies. For CNE proponents, the United States since FDR has built a national government without a basis in the Constitution, an exile, so they say, of 70 years.
New Bush circuit judge Janice Rogers Brown was speaking in the context of the Constitution in Exile when she said, "The Constitution itself was transmuted into a significantly different document...1937...marks the triumph of our own socialist revolution." Her views, and those of many potential Bush additions to the Court, clearly imply an upheaval in the American economy and society as well between the federal government and the states. As Rosen notes of the rise of CNE and the undoing of three generations of precedent:

These justices could change the shape of laws governing the environment, workplace health and safety, anti-discrimination, and civil rights, making it difficult for the federal government to address problems for which the public demands a national response.

The coming wave of strict constructionist, CNE jurists threatens to turn back the clock and reopen what most Americans consider to be resolved issues. The Commerce Clause may well reemerge as a bludgeon against workers' rights, environmental laws and health and safety regulations. On the 100th anniversary of the Lochner decision overturning a New York state law establishing a 10 hour work day for bakers, we face the prospect of a new conservative court using a myopically narrow view of the Commerce Clause to the dismay of most Americans.
Rosen argues that it is the Constitution in Exile concept, and not the threat to Roe v Wade, that should most trouble progressive Americans. His take is that abortion rights are simply too settled and enjoy such majority support that the Bush team would not risk the Republican majority over Roe.
For my part, I think he's right on the threat from CNE. But we part company on the risk to reproductive rights from the coming Bush court. By now, we all should know better than to expect George W. Bush to back down once he's sharpened his claws.


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Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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