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The Senate Judiciary Committee is expected next week to approve the nomination of D. Brooks Smith to the U.S. Court of Appeals for the Third Circuit. The full Senate will approve the nomination, if the Democrat leadership ever lets it come up for a vote. The fight over the Smith nomination shows what President Bush’s opponents are really after and what they’re willing to do to get it.

The far-left wants a judiciary that will produce politically correct results, no matter how they get there. This is about political ideology. Such judicial activism obliterates the rule of law and takes away from the people the power to run the country and define the culture.

Most conservatives want a judiciary that will follow a judicially correct process, no matter where it leads. This is about judicial philosophy. Such judicial restraint preserves the rule of law and keeps the power to run the country and define the culture in the people’s hands. I say most conservatives believe this, because some want judicial activism that produces conservative, rather than liberal, results. That’s just as bad.

And so the far-left is targeting nominees, like Judge Smith, whom they perceive as too “conservative,” that is, unlikely to rule their way on their issues. That means litmus tests. In a letter dated May 10, 2002, Sen. Charles Schumer, D-N.Y., asked Judge Smith “a third time” about his “judicial ideology.” Sen. Schumer wanted to know whether Judge Smith believed the Supreme Court’s decision in Griswold vs. Connecticut creating a right to privacy was “right or wrong.” Not whether he, as a lower court judge, would follow this Supreme Court precedent, but whether he personally thought it was right or wrong. Why ask that question? “[B]ecause I am interested in how you personally read and interpret the Constitution.” That is, Sen. Schumer wanted some leads on how Judge Smith would rule on other issues in other cases.

Judge Smith had previously answered simply by recognizing the obvious, that the Supreme Court in Griswold said the Constitution contains a right to privacy. Again, as a lower court judge, that should be enough. But it was not enough for Sen. Schumer. He asked how Judge Smith would have decided Griswold in the first place, as if he had been on the Supreme Court back in 1965. Since Griswold is indeed on the books and, as a lower court judge, Judge Smith pledged to follow precedent, that question was by itself merely academic. Sen. Schumer really wanted to know whether Judge Smith was willing to find in the Constitution things that are not there and, if so, how liberal those things would be.

Sen. Schumer should have done his homework a little better. At an earlier hearing, he decried a Supreme Court full of “conservatives” and “moderates” (he puts Justices Ruth Bader Ginsburg and Stephen Breyer in this category). Instead, he said, America needed real liberals in the “Hugo Black tradition.” Justice Black was on the Court that decided Griswold, the case Sen. Schumer apparently believes stands for everything desirable.

Rather than asking Judge Smith to put himself in Justice Hugo Black’s shoes, however, let’s do it the other way around. Just for fun. What if Justice Black was in Judge Smith’s shoes and Sen. Schumer had asked Justice Black what he thought of Griswold? Well, we know the answer because Justice Black dissented this way: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”

Justice Black continued: “The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not.” It seems even Justice Hugo Black, Sen. Schumer’s liberal poster boy, would not likely survive today’s Senate Democrat litmus test. Perhaps even Sen. Schumer would vote no.

This is the story of the current confirmation process. Senate Democrats are changing the ground rules for Republican nominees, not out of statesmanship, but pure partisan ideological politics.

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