Judging Bush's judges

By Thomas L. Jipping
web posted March 26, 2001

The New York Times had some news the other day that was not only fit to print but encouraging to those hoping President Bush will once again see that judges, and not politicians, occupy the federal bench. Reporter Neil Lewis warned, "The Bush administration is moving with extraordinary swiftness to put its stamp on the federal courts." This "stamp" is very important because, as former Senate majority leader and presidential candidate Bob Dole said in 1996, "the federal judges a president chooses may be his most profound legacy."

Antonin Scalia Clarence Thomas
Scalia and Thomas

George W. Bush did not make judicial selection a central, or even a prominent, issue during last year's presidential campaign but did identify generally the kind of judge he intended to appoint. Early in the campaign, the Bush website said these would be "strict constructionists who would interpret the law, not legislate from the bench." Mr. Bush also said in interviews that he would name judges who apply a "strict interpretation" to the Constitution. In addition, Mr. Bush singled out as his favorite Supreme Court Justices Antonin Scalia and Clarence Thomas.

Yes, there's a lot of play in the joints with such clichés and, yes, other Republican presidents appointed activist judges while using this language. David Souter was supposed to be a "homerun for conservatives." But ending in the right place requires starting in the right place, and a president saying he will appoint restrained, as opposed to activist, judges is the right place to start.

There are signs that President Bush's federal judicial appointments may be consistently better than were Gov. Bush's state judicial appointments. A Wall Street Journal reporter examined then-Gov. Bush's judicial selection record in Texas and concluded that Bush judges "follow a nonactivist, slightly right-of-center approach." He quoted an appellate expert that they "appear to agree that a judge's role is to interpret the law, not to change it." At the same time, liberal Harvard law professor Randall Kennedy noted that "even liberal observers have applauded" many of those state bench appointees and Texas trial lawyers praised Mr. Bush for "moderating" the state supreme court.

If the New York Times' assessment is correct, the early indications are encouraging on the federal scene. First, it appears the Bush administration is making judicial selection a priority. Mr. Lewis wrote, "The quickness with which officials are addressing the selection of judges is a revealing window into the priorities of the administration's lawyers." Nearly 100 judicial positions are currently vacant and, in part because new administrations are slow to make nominations, judicial confirmations are typically low during a president's first year in office. While the Senate has confirmed an average of 49 judges per year over the last two decades, President Reagan appointed 31 in 1981 with a Republican Senate; President Bush appointed just 15 in 1989 with a Democratic Senate; and President Clinton appointed 28 in 1993 with a Democratic Senate.

Second, it appears President Bush has put in charge of judicial selection people committed to a restrained judiciary. Those lawyers, Mr. Lewis reports, "have a strong ideological commitment to conservative jurisprudence" and, perhaps most encouraging, "are members of the Federalist Society."

Third, it appears the Bush administration judge-pickers know the difference between judicial philosophy and political ideology. During the campaign, Mr. Bush rejected the use of issue-based litmus tests designed to secure commitments from nominees on how they would vote as judges on those issues. During his confirmation hearing, Attorney General John Ashcroft repeated this position. And Mr. Lewis quoted White House Counsel Alberto Gonzalez as saying they don't use "litmus-test questions" which Mr. Lewis correctly described as "the kind that directly seek answers to how a person would vote on a given issue like abortion."

Unfortunately, Senate Democrats have not similarly rejected the politicizing strategy of demanding that judicial nominees sacrifice their impartiality by publicly promising to vote a particular way on such issues. After Mr. Ashcroft's confirmation, Sen. Ted Kennedy, D-Mass., vowed that "there's going to be an additional test" for confirming Mr. Bush's judicial nominees. Beyond competence, integrity and temperament, Sen. Kennedy said the Senate will demand "a commitment to the core values of the Constitution. And the core values of the Constitution now include ... a woman's right to choose" abortion. That is, the Senate will not confirm a judge who does not openly promise to vote pro-abortion.

The law cannot restrain government power and protect individual liberty if it is not different than mere politics. Thus requiring that judicial nominees violate the judicial oath of impartiality before they have the chance to take that oath is a direct assault on judicial independence and on freedom itself. The Bush administration is taking the right position here, emphasizing that while results are the first step for a politician, results are the last step for a judge. Politicians can be judged on the results, on who wins and loses, but judges must be evaluated on the way they achieve results, on application of the law.

No political or legislative agenda is safe with political, activist judges on the bench. The people's right to govern themselves and define the culture is a myth unless judges occupy their properly limited role. Because Republican presidents have not consistently used this to guide judicial selection, and after 375 Clinton appointees, activist judges outnumber their restrained colleagues by better than two-to-one. The task at hand is formidable, the need is great, and it appears the Bush administration is off to the right start in this critical area. The proof will be when we finally see his nominees and when his appointees start rendering decisions.

Thomas L. Jipping is vice president for Legal Policy at the Free Congress Research & Education Foundation in Washington, D.C.

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