Judicial Party Games

(originally posted Sept 15, 2002 -- I'm currently posting past articles before adding new material)


America's culture war continues unabated, with each side hurling political salvos where and when they consider most expedient, and with little regard for whoever or whatever gets in the way. Unfortunately, it's usually the Constitution and founding ideologies of the United States that get hit the most in this continuous exchange of fire, and no matter how much we would prefer to stay out of harm's way, sooner or later all of us find ourselves in the crosshairs.

Consider the debate over Priscilla Owen, President Bush's nominee to fill a vacancy on the US federal circuit court. Senate Democrats recently united to defeat Owen's nomination, albeit by a razor-thin margin, on charges that she represented an 'extremist' agenda due to her decisions regarding abortion while serving on the Texas Supreme Court. "Our country is divided ideologically," Senate Judiciary Committee member Charles Schumer (D-NY) remarked, stating that because Bush did not win the popular vote in the 2000 presidential election, he has "no mandate from the American people to stack the courts with conservative ideologues".

California Senate Democrat Dianne Feinstein joined Schumer in casting dispersions on the legitimacy of the Bush presidency, stating: "President Bush did not have a large mandate. There is no mandate, in my view, to skew the courts to the right. I think you're going to see a Judiciary Committee that's really going to be looking for mainstream judges". Yet, mainstream or not, mandate or not, Feinstein made it clear to Tim Russert on Meet the Press that she was looking to approve judges who would uphold her own particular pet issues: "There are points that many of us feel passionately about, one of them being Roe vs. Wade,” Feinstein told Russert. “I don’t want to see Roe overturned. I’m in a position where I’m going to be very careful that a judge that I vote for to go to a circuit court will not do that.” As for Schumer, he claimed that he had "no litmus test at all," but cautioned that he certainly opposed nominations that would make the Supreme Court a group of nine "Scalias or Thomases." So Schumer apparently has a litmus test after all; if you are, in his opinion, a Scalia or a Thomas, you can pretty much deem yourself out of the running.

Therefore, gathering what we understand from the comments of Senators Schumer and Feinstein, there are basically two requirements that Senate Democrats will be looking for in federal court nominees: 1) What sort of "mandate" did the American electorate give the current President, and 2) Will the judicial nominee defend Senator "So-and-so's" pet issue(s). These two items in turn assume that federal judicial nominees should ultimately be chosen with only one real criteria in mind: agenda.

This should hardly come as a surprise to us. If nothing else, the presidential election of 2000 demonstrated one fact with crystal clarity: our court systems have become politicized. Some of you may remember the various news reports emanating from Florida when Al Gore's recount dispute was thrown into the courts; and if so, then perhaps you will also remember that most of the discussion among the various media talking heads had to do with whether "Judge so-and-so" was liberal or conservative, or who appointed him or her, or whether their decision record indicated a liberal or conservative agenda. The biggest story of the hour, in the media's view, was the contested presidential election, but what really stood out was the fact that the courts themselves had been transformed from dispensers of justice to enforcers of agenda.

It's way past time that Americans took a good, hard look at this fact. The court systems that supposedly exist to dispense justice to you and I are now political battlegrounds, and as a result, the laws under which we are expected to live have fallen into partisan hands. Every facet of American life is slowly coming under political scrutiny by the power-hungry, who then attempt to force their partisan agendas upon us by stacking the courts with ideological clones of themselves. And both political parties are guilty of this heinous crime against the liberties of the people, each citing their decisions as "what the American people want," or "what's right for America," when it all really boils down to what their favorite special interest groups want or what's right by their agenda.

The Constitution created the Supreme Court, and authorized the creation of lower federal courts, in order to "tend to all cases, in law or equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." In other words, the federal courts were to uphold the provisions of the Constitution and laws made in compliance with those provisions, not to reflect Charles Schumer's "mainstream" concerns, and not to run blocker for issues that Dianne Feinstein feels "passionately about". If the selection of judges and the function of the court system is made to serve the whims of political agenda, then the cause of liberty has been dealt a crushing blow for all Americans, regardless of their political affiliations. For with the interpretation of the laws in the hands of an agenda-driven few, there is theoretically nothing beyond their grasp, no matter how sacred it might seem to you. We are then doomed to a perpetual power-struggle in which both sides of the aisle will continue to fight tooth and nail to fill the courts with ambassadors of their respective causes, with truth and justice relegated to the backburner in favor of all-important agenda.

The fact of the matter is that such judicial landscaping is wrong, not just when Democrats or Republicans do it, but when anyone does it. For although you may agree with filling the courts with your party's nominees today, what will you say when the political opposition seeks to fill the courts with their own nominees tomorrow? Will you appeal for "mainstream" judges? And who will determine what a "mainstream" judge is?

Instead, why not end the cycle of judicial political activism, by both sides of the aisle? Leave partisan politics for party conventions and keep it out of the courts. Return to the days when a judge was appointed to serve in office because he or she was qualified for that office by virtue of their credentials and a history of upholding the law, not by the designation on their voter ID card. If a judge wants to be politically active, that's fine...so long as they do it in the voting booth and not from the bench.