When the Supreme Court’s term ended two weeks ago, rumors that a justice might retire flew around the country. Though apparently a false alarm, a Supreme Court vacancy will happen and the stakes are very high. Even so, vacancies in the lower federal courts are already a fact and President Bush has nominated highly qualified individuals who, as judges, will follow the law rather than some political agenda.
We are due for a Supreme Court vacancy. Only one president this century, and just two ever serving a full term, made no Supreme Court appointment. The court’s eighth term with the same lineup beginning in October is an amazing stretch since, on average, a new justice is appointed every two years. A longer span without an appointment has not occurred in more than 180 years.
A Supreme Court vacancy is, however, only potential, but the 109 vacancies on the district and appeals courts are real. Even if President Bush never nominates anyone to the Supreme Court, he has already sent the Senate nominees to fill nearly one-third of these lower court vacancies.
Six of those vacancies are on the U.S. Court of Appeals for the Sixth Circuit which includes Michigan, Ohio, Kentucky, and Tennessee. That’s six of the court’s 16 full-time positions, or a whopping 38 percent. President Bush has now nominated two outstanding individuals to this court.
One of them is Jeffrey Sutton, partner in one of the world’s most prestigious law firms and former solicitor for the state of Ohio. Even the liberal American Bar Association has rated Mr. Sutton “well qualified” for this appeals court position. More important than his resume, however, is his understanding that judges should simply follow the law.
Mr. Sutton argued a case before the U.S. Supreme Court titled Trustees of the University of Alabama v. Garrett that offered a clear choice between following the law or special interest politics, between being judicially correct or politically correct. By refusing to let the politics of the moment undermine the rule of law, Mr. Sutton defended freedom for all Americans.
In this case, two Alabama state employees sued their employer under the Americans With Disabilities Act and demanded money damages. This lawsuit pitted a statute against the Constitution, testing whether the Constitution actually limits government power. Through the provision of the ADA at issue in this case, Congress provided for lawsuits against state governments despite the Constitution’s 11th Amendment protection against them.
In the law as in life, it’s easy when it’s easy. Defending the rule of law is easy when the issue is boring. It’s easy to say legislatures must observe the Constitution’s limitations when no powerful political interests are at stake. Insisting that judges follow the law and leave politics to the people is easy when the polling data show no one really cares about the result. But when the Constitution does not permit something we want government to do, when there’s a potent issue involved, will fashionable politics suddenly trump those fundamental principles? Will the judicially correct step aside for the politically correct?
Judges following the rule of law rather than the lure of politics are necessary for freedom. The judicial oath before God to render impartial justice without respect to the parties or issues before them is just talk until those parties or issues are politically volatile.
Garrett was one of those cases and, though it involved disability, Mr. Sutton chose to be judicially correct rather than politically correct. He argued that Congress must abide by the Constitution no matter the issue, no matter the parties, no matter the result. He argued for freedom.
Politically correct ends do not justify freedom-destroying means. Insisting that government act only with lawful authority is, in fact, the only way to protect rights. Women, minorities, the disabled – no one has concrete rights they can successfully defend if those rights are what some judge chooses to acknowledge rather than those the law protects. Once judges go beyond interpreting or applying the law and actually become the law, “we the people” are no longer in charge. And what judges can give, they can take away.
Judges should stick to the law and let the people handle the politics. In this important case, Mr. Sutton defended our freedom by advancing this principle even when it was politically incorrect. It’s about time we had public officials unwilling to compromise, bend, and twist everything for a political agenda. Mr. Sutton’s principle makes the case for his confirmation complete.