Senate Democrats were to have continued their scorched-earth confirmation obstruction campaign today by defeating, on a straight party-line vote, the nomination of Charles Pickering to the U.S. Court of Appeals for the Fifth Circuit. The final vote has been postponed until next week.
Appearing last Sunday on NBC’s “Meet the Press,” Sen. Dianne Feinstein, California Democrat and Judiciary Committee member, predicted Judge Pickering’s demise. That will be odd since several members of the committee helped unanimously confirm him to the U.S. District Court in 1990. The liberal American Bar Association – considered by Democrats the “gold standard” for evaluating judicial nominees – upped its rating from “qualified” in 1990 to “well qualified” today.
While you can’t help but step in some hypocrisy like that in Washington, it’s actually Sen. Feinstein’s reason for opposing Judge Pickering that’s significant. She opposes him because he has “right-wing views, both politically and personally.” That’s a lot more significant than it might sound.
If Judge Pickering were running again for the Mississippi State Senate, his political and personal views would obviously be relevant. A political candidate promises to translate those views into law. But why are political and personal views relevant to a judicial nominee? Like most liberals and some conservatives, Sen. Feinstein apparently sees no difference between judges and politicians. Political and personal views, rather than law, drive judicial decisions. Good judges have correct views and translate them into law.
Last year, though, Sen. Feinstein was among those lecturing John Ashcroft about putting aside the political and personal views he used as a legislator should he become attorney general. Those views, they said, are irrelevant in the executive branch, where he must enforce even laws with which he disagrees.
Political and personal views should be especially irrelevant to the judicial branch. As Chief Justice John Marshall wrote in Marbury vs. Madison, judges are there to say “what the law is,” not what it should be. Judges don’t make law, or even enforce it, so their political or personal views not only don’t matter, they must not matter. Only then can the judiciary be, as America’s founders intended and our liberty requires, the “weakest” and “least dangerous branch.”
By saying what our laws mean, judges can say what our laws are. If anyone’s political and personal views are to determine what our laws are, it’s certainly not a small band of unelected judges. If “we the people” are to run the country and define the culture, judges must simply follow the law and leave the politics to us.
The controversy over Judge Pickering’s nomination shows just what an “ugly affair” this can be. That’s what the liberal Washington Post called it. Those “personal and political views” on which liberals base confirmation votes include religious views. The leftist People for the American Way’s report on Judge Pickering focused on his Christian faith and church leadership. Translation: Conservative evangelical Christians hold incorrect views that disqualify them for judicial service. That’s religious bigotry, and contrary to the Constitution’s prohibition on a religious test for public office. But that type of intolerance and exclusion is inevitable when basing judicial selection decisions on a nominee’s political and personal views.
Sen. Feinstein’s criterion of political and personal views might sound familiar. Last year, Sen. Charles Schumer held hearings to promote his view that senators can base confirmation votes on a nominee’s “ideology.” Same thing. A judicial nominee’s ideology will predict his rulings as a judge. Not surprisingly, Sens. Feinstein and Schumer were the first two Judiciary Committee Democrats to announce opposition to Judge Pickering.
Perhaps there’s still a chance for Judge Pickering. In March 1997, Sen. Joseph Biden said that “it is not … appropriate not to … bring [nominees] to the [Senate] floor” for a vote. Maybe, just maybe, he will apply this same principle to Republican nominees as well. Whatever the outcome, the far-left gloves have come off and the response by the Bush administration and Senate Republicans will chart the road ahead.
The way out of this political and personal swamp is to refuse to muck around in it at all. Instead, Republicans must offer the American people a different view altogether of judges and how to choose them. That view is what America’s founders offered, impartial judges who trust the people to make political decisions. Judges who do their job so we the people can do ours.