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Banking on Bruce

Court Watch

If Bill Clinton nominates Bruce Babbitt to the Supreme Court, he will be hard-pressed to claim that the interior secretary shares his judicial philosophy. For after reviewing Babbitt's extensive writings and speeches, the White House is confident that Babbitt has virtually no opinions on constitutional issues that he has bothered to express. For most politicians, this would be unexceptional; but in Babbitt's case it is somewhat surprising. For the intellectual range of his interests is so broad--Babbitt has written about subjects from antitrust enforcement to Amazonian development--that he appears to be curious about everything except constitutional interpretation.

Compared with Babbitt's views on other topics, which are generally nuanced and intelligently provocative, his few statements about the Constitution are disappointingly superficial. In a 1987 speech to the NAACP, Babbitt called for a searching inquiry into Robert Bork's judicial philosophy. He then offered a crude caricature of the philosophy he called "interpretivism":

That's the voguish term for "judicial restraint," which isn't very voguish at all. The essence of that philosophy is that the president and Congress can do whatever they like, so long as it is not specifically forbidden in text of the Constitution or its amendments.... You can't read [the Framers'] Constitution like a rulebook.... The job of a Justice is justice.

The Bork speech was a partisan screed, delivered in the heat of the presidential campaign; and perhaps it should not be taken too seriously. But in Babbitt's more measured writings and speeches, the references to constitutional issues are no more detailed. In a 1981 article for this magazine, Babbitt noted that "the sorting out of governmental functions in a federal system is ultimately a political decision best left to political battlefields rather than to the cloistered reasoning of judges." (See "States Rights for Liberals," tnr, January 24, 1981.) But he seemed uninterested in the constitutional as well as the political nuances of the federalism debate, including the 1976 decision that the Tenth Amendment prohibits the federal government from interfering with "traditional state functions."

Babbitt's record of appointing judges in Arizona is also unenlightening. Mike McCurry, the State Department spokesman and Babbitt's former chief of staff, recalls that "on the campaign trail, when Babbitt was asked what kind of justice he would appoint, he would say: `the kind of judge I've already appointed--Sandra Day O'Connor.' Then he'd say how important it is to appoint people who respect precedents like Roe v. Wade. It was a stock answer, which is unusual for him." O'Connor, for her part, is an odd role model for Babbitt to embrace. He chose her as part of his laudable effort to diversify the Arizona judiciary with merit appointments (25 percent of his judicial appointments were Hispanic, black or women); but she has proved, after Clarence Thomas, to be the most disengaged justice on the Rehnquist Court.

It was not judicial philosophy, however, that drew Clinton to Babbitt. According to several reports, the president wants a justice with whom he feels "comfortable," a politician in the model of Earl Warren, who will mediate and conciliate between competing judicial factions. This is the most absurd manifestation of Clinton's personalizing of the political; and it represents an unfortunate misunderstanding of the dynamics of the current Court. As the Thurgood Marshall papers show, the Rehnquist Court is not the Warren Court. The justices today devote little time to intellectual debate or political horse-trading. Instead, the most effective justices--Stevens, Scalia and Souter--are distinguished by their ability to combine a meticulous attention to detail with a broader constitutional vision.

Clinton has reportedly been moved by the argument that eight of the justices on the Court that decided Brown v. Board of Education came from politics. But the Brown Court was a mixed bag; and the most political of its justices, such as Truman crony Shay Minton, were the most mediocre. And among the former politicians, the most successful, such as Hugo Black, were the most cerebral.

Babbitt appears, in short, to have caught Clinton's attention for the wrong reasons. It also would be a shame to lose him at Interior. But if he took the job, and took it seriously, there is some hope that he might become an engaged justice, in the tradition of Black rather than Warren. First, Babbitt does most of his own writing. Editors who have worked with him attest that, like most good writers, he is grateful for criticism. "All I ever learned in a big law firm was, the power is in the hands of the draftsmen," Babbitt told The Washington Post in 1986.

Second, Babbitt is one of the few sitting governors to have written a few law review articles; and he plunges into the most numbingly obscure questions with a scrupulous attention to detail. In a 1980 article on "The `State' of Regulatory Reform," Babbitt discussed the perverse economic effects of transportation rate regulation; and in a 1982 article, "Federalism and the Environment: An Intergovernmental Perspective of the Sagebrush Rebellion," Babbitt carefully reviewed the language of the federal statutes regulating state land use. Both articles suggest that Babbitt may have the technical competence to be a judge.

By most accounts, finally, Babbitt is more of a thinker than a natural politician. Yet he appears to be free of the brooding narcissism that afflicts other self-styled political intellectuals, such as Mario Cuomo and Gary Hart. He is famous among Marshall scholars for having bypassed the conventional route of studying politics at Oxford, electing instead to take a masters in geology at the exotic University of Newcastle upon Tyne. Babbitt seems to have the same combination of inner-directed confidence, personal modesty and candid integrity that has made David Souter an increasingly effective justice. Perhaps Babbitt, like Souter, has the potential to win the confidence of his colleagues, not because he is a politician, but in spite of it.

Could Babbitt challenge Scalia and change the debate for the entire Court? Not for a few years, at least. There is no shame in taking some time to get up to speed, as the shaky first terms of Black and Souter demonstrate. But with Babbitt's constitutional lacuna in mind, his appointment would be a gamble, and one that does not reflect terribly well on Clinton. Something is amiss when, one by one, the best candidates are disqualified because they fail to remind the president of himself.