GOP vs. 'Activist' Judges

Senate Republicans have wisely rejected moves by some of their colleagues to build a GOP veto into the judicial appointment process. The chamber's Republican majority retains, of course, a big say in who sits on the federal bench. But the proposals nixed on April 29 would have squeezed President Clinton's options into a much tighter box, requiring an OK from GOP senators from the region covered by a federal appellate court, for instance, or prior Republican "clearance" for all nominees.

These measures would have unreasonably crimped the president's ability to fulfill his constitutional duty to appoint federal judges. They would also have set in motion a political contest that would surely have boomeranged on future Republican chief executives. Moreover, they infringed on the authority of Judicial Committee chairman Orrin Hatch. That threat to established Senate procedure was enough to decide many Republican conference members.

But the demise of some poorly conceived procedural changes doesn't mean any abatement of the underlying political struggle. Congressional Republicans, including Senator Hatch, are determined to see that Mr. Clinton is not given a free rein to fill some 100 vacancies on the federal bench. More to the point, they want to make sure he doesn't appoint "judicial activists."

In fact, the president was not so inclined in his first term, opting generally for moderate appointees - to the despair, often, of his liberal supporters. Many observers expect him to retain that inclination. But a number of Republicans, clearly, don't count on it.

And their concerns about "activism" have roots in hard experience. In recent years, judges have frequently strode into arenas best reserved for legislative bodies. Look at the Kansas City schools case, a judicial effort to force integration that has distorted educational funding throughout Missouri and has done relatively little to create multiracial classrooms. Or consider the court orders entwining New York City officials. By some estimates, court directives dictate how a quarter of the city's $39 billion budget is spent. School systems, prison systems, and other government functions are virtually run by the federal courts in dozens of states.

In certain cases, that is not a bad thing. The federal courts, with their broad authority and objectivity, ought to step in when state or local authorities allow conditions repugnant to the aims of the Constitution. The history of civil rights litigation proves that activism can be crucial to progress.

But there are limits to what a court can do. Debating and defining those limits are rightly a part of the nomination and confirmation process.