A Problem with Judges

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A Problem with Judges
by James Hall, Senior Associate Editor

May 13, 2003

"Leaning Left"

James Hall President Bush thinks we have a problem with judicial nominations. The Senate isn't moving fast enough to suit him, taking its time to check the jurists who will get lifetime appointments to the federal judiciary and be the final arbiters of the nation's law. So Mr. Bush wants the Senate to change its rules for a quick up-or-down vote on these judges.

The Senate, naturally enough, considers itself an equal partner in government. (As does the Constitution, for that matter) It resists being told by the head of the Executive Branch to change rules like its historic 'filibuster rule,' which requires 60 Senate votes to cut off debate on any issue.

Senate Minority Leader Tom Daschle puts Mr. Bush's problem in perspective. 124 of Bush's judicial nominees have been confirmed by the Senate, a record number of judicial appointments for the first two years of this or any administration. The current 6% vacancy rate on all federal benches is the lowest it's been in over a decade.

Only two of the president's 126 nominees have faced serious opposition from a filibustering minority of at least 41 Senators. As Senator Daschle pointed out, 124 approved out of 126 nominations represents a 98.4% success rate, pretty good for judges or just about anything.

The opposition to these two is based solely on their out-of-the-mainstream legal opinions, not on their knowledge of the law. Opposition to Miguel Estrada, a private lawyer who served in the Solicitor General's office, is based on his refusal to stand on his record. A lifetime appointment to the bench should require that each candidate have a record or put himself or herself on the record as far as the law of the land goes.

But Estrada refused to hand over his written briefs, legal memos or even to answer fundamental questions on Roe v. Wade and affirmative action, with the lame excuse that he "hadn't studied them in a judicial manner." His silence on these issues tells us what he is likely to do if given the chance. If Mr.Estrada wants a fair hearing and a vote, then let him provide the information the Judiciary Committee requested and let him testify fully and completely before it.

As for Judge Priscilla Owen, she has a record. An awful one on the extreme right wing of the Texas Supreme Court, where she consistently dissented from the opinions of the more mainstream conservative judges on that panel (most of them appointed by Governor George W. Bush), and was just as often over-ruled by higher courts.

There is a problem with judges, but it's not the problem that Mr. Bush is talking about. It's the administration's attempt to pack the courts, especially the higher appellate branches, with out-of-the-mainstream conservative ideologues willing to rewrite the nation's landmark rulings on affirmative action, abortion, separation of church and state and a host of other issues.

Conservatives could alter those decisions themselves with laws if they had the political strength to legislate them in Congress, or if the majority of Americans were behind making them laws. But they don't, and they aren't, so the Right is maneuvering to overturn the rulings by changing en masse the politics of the personnel in the nation's highest courts.

That's where a principled opposition comes in. Liberals set the tone for the ideological judicial battles that have taken place in by refusing to place the conservative ideologue Judge Robert Bork on the Supreme Court in 1987. They continue that opposition today by opposing two nominees who are either hiding their real legal opinions or who are far to the right of the mainstream judicial community.

While liberals started the ideological litmus testing, conservative Senators picked it up with a will when they got power, and they taught liberals how easy it can be to block a lot of judicial nominations in the US Senate. In the 1990's more than 50 Clinton judicial nominees got the no-nothing treatment-not even a hearing before the Senate Judiciary Committee to discuss their beliefs or credentials. 15 more were heard by the Committee but never got that "up or down vote" that Mr. Bush thinks is constitutionally necessary.

To solve his 'problem,' President Bush can fill empty judicial seats by appointing qualified candidates from the judicial mainstream, conservative or liberal, with good records and a willingness to reveal to the public what their judicial principles are. Or he can appoint more stealth candidates and candidates with extreme records, and get more filibusters from the Senate. ***

James Hall
Orlando, FL USA

Photo of the author courtesy of staff files