Trials of the federal bench

Last Tuesday, Democrats in the Senate took an unusual step as they
actually filibustered one of President Clinton’s judicial nominees.
However, this nominee is not representative of other selections Mr.
Clinton has made for the federal bench; far from it. Ted Stewart of
Utah is a friend of the man who chairs the Senate Judiciary Committee,
Orrin Hatch, R-Utah.

The nomination of Stewart was the price Mr. Hatch extracted from
Clinton for holding hearings on his other judicial nominees waiting in
the wings. What price will Stewart’s confirmation cost Republican
leaders? More importantly, what price will Stewart’s confirmation cost
the people of America?

Presently, Senate Democrats are trying to negotiate a “twofer.” They
want Republicans to agree to confirm Richard Paez and Marsha Berzon for
the ninth circuit U.S. Court of Appeals in exchange for elevating
Stewart to the U.S. District Court in Utah. In Monopoly, it would be
like trading Baltic Avenue for Boardwalk and Park Place. It would be
like giving up a vacant lot in the slums for two in the business
district that contained modern high-rise office buildings.

Ted Stewart may be a nice man, a worthy candidate. However, his
appointment would not be worth letting Ms. Berzon and Mr. Paez advance
to the U.S. Court of Appeals, which is the last stop on the way to the
Supreme Court.

Democrats favor judicial activists, those who are willing to change
the meaning of laws passed by Congress and, when necessary, the
Constitution, in order to make it fit their views. Republicans are
supposed to support restrained judges who take the law as they find it,
leaving changes to legislatures or to the people. In other words,
judges who do not try to reinterpret the Constitution, and, when
necessary, will go back to the writings of the Founding Fathers in order
to discover their original intent in a matter in dispute.
Unfortunately, the GOP’s record of holding the line against Clinton’s
activist appointments is dismal.

A Senate majority serious about advancing its view of the judiciary
will slow confirmation of an opposition party president’s nominees and
deny hearings to those who are particularly objectionable. A report
from Tom Jipping of the Judicial Monitoring Project of the Free Congress
Foundation found that Democrats denied hearings to 44 Republican
nominees from 1987 to 1992, while Republicans denied hearings to only 17
Democratic nominees from 1995 to 1998. Furthermore, a party that is
serious about its convictions will vote against judges who are found to
be undesirable during those hearings. While Republican judicial
nominees were defeated during Democratic Senate control, no Democratic
judicial nominees have been defeated during Republican Senate control.

This is not a result of Republican timidity. In fact, Mr. Hatch
announced that his hearings no longer will be used to ask nominees tough
questions and, as Jipping has pointed out, he has “undermined other
senators’ attempts to do so.” Senate Majority Leader Trent Lott also
seems to have adopted a less aggressive approach toward judicial
selection. On July 9, 1996, in a colloquy with Minority Leader Tom
Daschle, Mr. Lott said, “There is no question that, philosophically, I
have problems with a lot of (these nominees). I am not using that as a
basis or a guide stick. I am trying to take them up in a local order to
get the calendar acted on in this regard.” The question to Mr. Lott is,
why not? Furthermore, once Clinton’s selections reached the floor of
the Senate, not a single nominee has been rejected. Republicans need to
be reminded that they were not put in control to institute “niceness”
but to hold the line against such things as runaway judicial activism.

Ms. Berzon has a long history of activism in both the labor and
women’s movements. She is active in the Campaign Against Fetal
Protection Policies. As a member of the Women’s Legal Defense Fund, she
aggressively lobbied Congress to pass the Pregnancy Discrimination Act,
which added pregnancy discrimination to federal sex discrimination
laws. She has been an Associate General counsel for the AFL-CIO since
1987 and has opposed the right of individuals to work independently of
unions. She has served as vice president of the board of directors of
the American Civil Liberties Union of Northern California.

Judge Paez has had ample opportunity to demonstrate that his politics
are much more important than judicial impartiality. For example, in a
1995 speech, he attacked California’s Proposition 187 as anti-Latino
“discrimination and hostility” and Proposition 209 as an “anti-civil
rights initiative.” At the time, both initiatives were subjects of
pending litigation. Therefore, he ignored the Judicial Code of Conduct
which prohibits a judge from making comments that so clearly “cast
reasonable doubt on the capacity to decide impartially an issue that may
come before the judge.”

As this tug-of-war over the confirmation of Clinton judges goes on,
last week a study was released by a new group called Citizens for
Independent Courts which seeks to show that the selection process for
filling federal judicial vacancies is dragging on longer than it
should. The group, which has former White House counsel Lloyd Cutler as
a co-chair, found that the average number of days it takes the Senate to
confirm federal judges increased dramatically from 38 days during the
95th Congress in 1977-78, to an average of 201 days for the 105th
Congress in 1997-98. This is not surprising. In 1977-78, Jimmy Carter
was president and Democrats controlled the Senate. If Citizens for
Independent Courts had produced a useful report, it would have compared
apples to apples and looked at what happened with Reagan and Bush
appointments when Democrats controlled the Senate and compared those to
Clinton appointments under Republican control, as Jipping did.

However, if you simply compare Mr. Clinton’s judicial selection
record to that of Mr. Reagan, the previous two-term president, their
records are almost identical. Mr. Clinton has appointed 309 judges to
the federal bench, compared to 310 for Mr. Reagan, at the same point in
his presidency. However, when you consider that Mr. Reagan had a
Democratically controlled Senate for only one of his first seven years,
while Republicans have controlled the Senate in five of Clinton’s first
seven years, you can see just how much farther ahead Mr. Clinton really
is.

Republicans should be encouraged to hold the line against Mr.
Clinton’s radical appointments to the federal bench, and the President
should be encouraged to produce better nominees or quit his whining.