A truly conservative court

WASHINGTON

AFTER A RUN of 37 years, conservative legal thought is showing clear signs of the fissures that come when longevity mixes with incumbency.

What began as a philosophy has morphed into an ideology. Philosophies can be windows open to the world; ideologies come with blinders.

The point was driven home to me not by the shouting matches here over a handful of President Bush's nominees to federal appellate courts, but by a remark a few thousand miles away in the other Washington.

After the closest election for governor in the country's history last year, Republican Dino Rossi lost a court case in which he sought another statewide vote. After a county judge's ruling let stand Democrat Christine Gregoire's 129-vote plurality, Rossi surprised many by dropping plans to fight on in the state supreme court.

What Rossi said was not that the battle was over and that no matter how maddening the situation was, it was time to accept the judgment. What he said was that he was halting the legal battle ''because of the political makeup of the Washington State Supreme Court."

Rossi's implication was in one sense accurate in that Democrats nominally predominate there, but what struck my eye was the implication that there is a direct connection between ''makeup" and assumed result. In his eyes, judges were no more than robots, a source of votes in a case instead of reasoned opinions on the legal merits.

Indeed, after two recounts of the disputed result by machine and then an exhaustive tally of the state by hand that produced the Gregoire lead, the Republicans went judge shopping for their court case. That search, of course, assumed that ''conservative" county or ''conservative" judge implied an expected connection between the adjective and the anticipated result.

What was missing was the political argument first framed in 1968 by Richard Nixon and used ever since by Republicans in campaigns to encapsulate conservative legal philosophy as a presumed antidote to the presumed excesses of the late Chief Justice Earl Warren's presumably activist US Supreme Court.

As Nixon first articulated it, the idea was that judges interpret law, they don't ''make" it like legislators. They interpret law and the Constitution strictly, moreover. If the words aren't in the founding document, they can't be grafted onto it by judges. If the words don't say Uncle Sam can do something, that something is reserved for the states and the people, as the Constitution says. The essence of judging is not the achievement of a desired policy result but the application of law. Agree or disagree with the philosophy, it is cogent and clear and deserves respect.

The Republicans' ideological judge-shopping in Washington landed them in Chelan County and the courtroom of John Bridges. Before the case was heard, their satisfaction was a matter of record. Bridges may have been named to the superior court bench years ago by a Democratic governor, Booth Gardner, but it is well known in politics that outside the South, Washington State has for years been Ground Zero for conservative or centrist Democratic thought. What is more, Bridges is universally considered without political taint, and in a libertarian culture his beard and diamond stud in one ear were given no ideological meaning at all.

Bridges gave the Republicans a fair chance at a fresh election under strict rules. They had to prove fraud with evidence instead of inference, he ruled before the case was tried, and they had to show that the number of clearly fraudulent Gregoire votes clearly exceed her infinitesimal margin. After the case was heard but before Bridges ruled, there was a widespread feeling even among Republicans in the state that their point had not been proved.

In his ruling that they had not proved either fraud or that inevitable irregularities indisputably mattered, Bridges paid particular attention to the GOP assertion that because, for example, more than 1,500 felons had been found to have voted, this by itself made the case for tossing the result. The judge focused on a claim not even a knee-jerk liberal activist would try to make, namely that he should have deducted ''illegal" votes from each candidate based on the share each got in the precinct at issue.

Using evidence to debunk the theory, the Democrats showed that out of five voting felons on the Republicans' list, four said they they voted for Rossi and the other went for the Libertarian candidate.

Bridges, however, tossed the entire vote deduction theory. Of the GOP invitation to theorize, he noted pointedly that ''to do so would constitute the ultimate of judicial egotism and activism."

Contrast this classically conservative ruling with Antonin Scalia's silly invention in 2000 of a 14th Amendment ''right" in stopping a statewide recount of Florida's disputed presidential vote as belatedly ordered by that state's supreme court.

And contrast Rossi's crabby reference to the makeup of Washington's supreme court with Al Gore's gutsy, gracious acceptance of what was really an effort to keep the House of Representatives from having to elect George Bush.

Conservative legal philosophy lives on, but much more so in Washington State than in Washington, D.C.

Thomas Oliphant's e-mail address is oliphant@globe.com.