Texas Gov. George W. Bush's recent rejection of a litmus test in judicial appointments has been generally acclaimed as evidence of what it means to be a compassionate conservative.

But this praise is too hasty and misses the crux of the debate over judicial politics that will be played out in the coming election.  In eschewing a litmus test and favoring judges who share his overall philosophy, Bush ducks the critical question of whether he will support or denounce the emerging activism by conservative judges that threatens our nation's health, safety and environmental laws.

A review of the judicial appointments of President Reagan and Bush's father confirms that these administration were concerned about more than simply attacking abortion rights.  While abortion politics played an important role in appointments to the Supreme Court, other issues, such as advancing the Republican attack on government regulation, dominated appointments to lower federal courts.

Take for example Douglas Ginsburg, whom Reagan appointed to the Court of Appeals for the District of Columbia Circuit in 1986.  Little was known about Ginsburg's views on abortion; what was known was that he is an anti-regulatory ideologue.  Ginsburg established a track record of hostility to government regulation during his three-year stint as the administrator of the Office of Management and Budget's notoriously anti-regulatory Office of Information and Regulatory Affairs.

It was under Ginsburg's leadership, after all, that the OMB, in arguing against asbestos control, used a cost-benefit analysis that calculated the cost to society of an individual losing his life to cancer, 40 years after exposure to asbestos, at a mere $22,000.

Ginsburg's views on government regulation made him an ideal right-wing candidate for the D.C. Circuit, which has exclusive appellate jurisdiction over challenges to most federal regulations.  Ginsburg's appointment has paid off in spades.

Recently, for examples, Ginsburg shocked the legal community by co-authoring an opinion striking down the Environmental Protection Agency's clean air health standards for smog and soot, ruling that a central provision of the Clean Air Act represented an unacceptable "delegation" of power by Congress to the agency.  As noted by the dissent, this ruling "ignores the last half-century of Supreme Court nondelegation jurisprudence" and calls into question many of the nation's most critical and popular statutes and regulations.

Consider also the Bush administration's appointment of S. Jay Plager to the Court of Appeals for the Federal Circuit

Plager was a successor to Ginsburg as administrator of the Office of Information and Regulatory Affairs and also spearheaded Vice President Bush's Task Force on Regulatory Relief.  Again, this experience made him a perfect anti-regulatory choice for the Federal Circuit, a specialty court with exclusive appellate jurisdiction over most claims against the federal government under the Constitution's takings cause.  Under Plager's leadership, the Federal Circuit (still dominated by eight Reagan/Bush appointees) has reinterpreted the takings clause -- which provides that the government cannot take private property without just compensation -- in a manner that threatens to make the federal government pay developers not to develop and corporations not to pollute the environment.

These disturbing examples are the tip of an emerging iceberg.  Reagan/Bush appointees around the country are broadly reinterpreting a host of constitutional provisions, including the contracts, commerce and takings clauses, in ways that threatens federal, state and local protections.  As University of Chicago law professor Cass Sunstein said recently, "judicial activism on the part of conservative judges is a much more serious problem (than activism by liberal judges), as some Reagan and Bush appointees have proved far too willing to invalidate decisions made by Congress and the executive branch."

The next president will, in all likelihood, have the power to determine the balance both of the Supreme Court and many critical lower federal courts such as the 9th U.S. Circuit Court of Appeals (which covers California and 10 other Western states), the D.C. Circuit and the Federal Circuit.  America needs to know what candidates Bush means in saying he will appoint judges who share his overall philosophy.  If elected, will his judges respect precedent and decide cases based on the facts and the law, or, like his father, will he appoint ideologues who use their judicial power to advance their personal political philosophy?  the nation's health, safety and environmental protections may turn on this answer.

Kendall is the founder and executive director of Community Rights Counsel, a Washington, D.C.-based public interest law firm that helps state and local governments defend health, safety and environmental protections. 

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