Senate Democrats say Republicans blocked President Clinton’s judicial nominees when they ran the Senate. It’s odd, though, that Republican “obstruction” still resulted in confirmation of a lot of radical judges.

Two of Mr. Clinton’s most radical nominees were Richard Paez and Marsha Berzon. Republicans resisted for a time, and then-Majority Leader Trent Lott promised in September 1999 not to bring up the nominations “unless we have the votes to defeat them.” Yet the obstructionist Republican Senate confirmed them both on March 9, 2000, and today they are among Mr. Clinton’s 14 appointments to the activist U.S. Court of Appeals for the Ninth Circuit. Three cheers for Republican obstruction.

In 1994, nearly three-fourths of California voters said habitual criminals were not first-time offenders, enacting the “Three Strikes” law requiring at least 25 years behind bars for a third serious or violent felony. The legislature determines, and can always change, the definition of a serious felony, but the people decided that multiple serious felonies deserve more serious punishment.

Californians may have been what one reporter called the “world’s largest legislature” when they enacted this law, but last November they met the world’s smallest legislature. And Judge Richard Paez won, ruling that using it exactly as Californians intended results in unconstitutional cruel and unusual punishment. The people said to look at the last felony in light of the others; Judge Paez looked at the last felony by itself, concluding that a 25-year sentence was “grossly disproportionate” to the crime.

Judge Marsha Berzon, confirmed on that same fateful day by that same obstructionist Republican Senate, has now had a crack at it. Earnest Bray had been convicted of four counts of robbery, Richard Brown of at least five serious or violent felonies – including second degree murder, assault with a deadly weapon, and robbery. They had chosen a life of crime and those prior crimes converted a subsequent offense from a misdemeanor petty theft into a felony petty theft “with a prior.” Conviction of this third (actually, fifth for Bray and sixth for Brown) felony required a minimum sentence of 25 years. They kept doing the crime so they were finally to do some time.

Opponents of “Three Strikes,” however, did not stop when they lost at the polls in 1994. Leftist law professor Erwin Chemerinsky looked for cases in which, no matter what the rap sheet, the latest felony looked relatively minor. Though under “Three Strikes” the rap sheet helped determine the sentence, if a judge looked only at the small tip of the criminal iceberg, he might say the sentence did not fit the crime. Bingo – Mr. Chemerinsky hit pay-dirt with Mr. Clinton’s liberal activists out there on the left coast.

(Mr. Chemerinsky, by the way, is now helping bring the lawsuit alleging mistreatment of foreign terrorists in Guantanamo Bay, Cuba. Yes, that Chemerinsky.)

Joined by liberal activist poster boy Stephen Reinhardt and fellow Clinton appointee A. Wallace Tashima, Judge Berzon did her part. Going to prison for 25 years for petty theft or shoplifting would, by itself, strike most people as a little much – or, in legalese, “grossly disproportionate.” The point is, of course, that neither of these career criminals had received that sentence for that crime. That’s not, however, how it works in judicial activist-land. There, reality is whatever the judge says it is.

Judge Berzon looked at petty theft itself – what she called the “core conduct” of the crime for which Bray was convicted. But then homicide is the “core conduct” of both involuntary manslaughter and first-degree murder. It’s the other circumstances that define the actual crime and resulting sentence. Bray chose to commit the “prior” that turned his petty theft from a misdemeanor into a felony. Never mind, Judge Berzon’s version of the law is what matters and that’s what she struck down.

Democrats planned all along to block President Bush’s judges. In May 2000, six months before the election, Sen. Joe Biden said: “If Bush is elected … we will see most of the judges stopped who are Republican.” Even after Sept. 11, Sen. Biden said: “We are not united on the makeup of the Supreme Court.” Democrats planned to justify their obstruction by accusing Republicans of it, whether it had actually happened or not.

If Republicans had only lived up to their billing, perhaps judges like these would not be overturning the people’s decisions and dismantling the criminal justice system. Instead, the accusation of fake obstruction is keeping Bush judges from balancing the activism of judges that some real obstruction could have prevented.

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