The liberal American Bar Association is at it again. Supreme Court Justice Antonin Scalia’s 1993 description of a discredited First Amendment theory applies today to the ABA – it is “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad.”
The ABA’s latest target is Paul Cassell, a professor at the University of Utah College of Law, nominated in June to the U.S. District Court in Utah. Of President Bush’s 59 judicial nominees to date, Professor Cassell is one of only two to receive even a single “not qualified” vote from the liberal ABA’s 15-member nominee evaluation committee.
The notion that Professor Cassell is “not qualified” fails the laugh test. While at Stanford Law School, he was a member of the prestigious Order of the Coif honor society and president of the Stanford Law Review. He clerked first for then-Judge Antonin Scalia on the U.S. Court of Appeals for the D.C. Circuit and then for Supreme Court Chief Justice Warren Burger.
Professor Cassell then worked in federal law enforcement as associate deputy attorney general and assistant U.S. attorney during the Reagan and first Bush administrations. And now, for nearly a decade, he has taught criminal procedure and evidence while publishing more than 25 articles in law journals and countless columns in newspapers and periodicals.
Professor Cassell has long championed the cause of crime victims. His advocacy of a crime victims’ constitutional amendment attracted bi-partisan support, from conservative Republicans such as Senator Jesse Helms to liberal Democrats such as former President Bill Clinton and Vice President Al Gore. Professor Cassell went before the U.S. Court of Appeals, winning $14 million in damages for the victims of the Oklahoma City bombing, and fought in court and in Congress for their right to watch Timothy McVeigh’s trial.
The ABA will quickly say that a majority of its evaluation committee rated Professor Cassell “well qualified.” But the confirmation obstruction campaign launched by Senate Democrats only needs something – anything – to justify blocking a nominee. Even a single “not qualified” vote will do it because the nominee suddenly becomes “controversial” and lacks “consensus.” The stall on Professor Cassell has begun.
Professor Cassell has been singled out for speaking the politically incorrect truth on two important criminal justice issues. First, he has destroyed the false arguments of those opposed to capital punishment. His work has debunked misleading anti-death penalty “studies” and shown that failing to execute murderers has actually resulted in the death of hundreds of innocent people.
Second, Professor Cassell has dared to challenge the validity of what Americans see on television every day – police reading criminal suspects their rights. Professor Cassell has demonstrated that this arbitrary requirement, imposed not by the Constitution but by the Supreme Court, actually results in freedom for guilty criminals. He has instead argued for more flexible rules, properly enacted by legislatures rather than courts, that would provide more rights for the accused and convict more of the truly guilty.
In Miranda vs. Arizona, the Supreme Court said no confession is voluntary unless those rights were first read off that little card. The Constitution, however, only requires that confessions be voluntary. Congress later enacted a statute with a more balanced approach aimed at ensuring voluntary confessions, not fixated on certain rituals. In April 2000, Professor Cassell argued before the Supreme Court that this statute should take precedence over the Court’s Miranda ruling. Not only was the statute better criminal justice policy, but Congress could enact it because it and not the Court has the authority to set federal criminal justice policy.
Judges are loathe both to admit they are wrong and to buck public opinion. The Supreme Court preferred to let popular entertainment rather than the Constitution drive its decision, saying it could not overrule Miranda because police reading suspects their rights had become part of the “public’s consciousness.” Justice Scalia correctly called this “judicial arrogance.”
So now we know what’s up. Professor Cassell wants a criminal justice system that is more pro-justice than pro-criminal. He has the guts to tell the truth about the death penalty and believes the Constitution is more important than Hollywood. And he has the guts to say the emperor has no clothes, that the liberal, politically correct propaganda sloshing around out there not only makes for bad policy, but that much of it just isn’t true. The bottom line is that he rubs the liberals at the ABA the wrong way and won’t keep his views to himself. No wonder some of them think he is “not qualified.”
President Bush was right for limiting the role of the liberal ABA. Now he must take the fight to the Senate and demand that America needs on the bench superbly qualified, honorable men like Professor Cassell with the courage to tell the unpopular truth.
