Iolaus
08-12-2004, 02:23 PM
Judicial Nominations
By Tara Ross
http://www.taemag.com/issues/articleID.18183/article_detail.asp
The judicial nominations issue will be one of the most important facing the next President--especially if one or more Supreme Court vacancies occur, as anticipated. What a pity that this aspect of the Presidential campaign isn't getting more attention. The two candidates have strikingly different views on the judiciary, and the judicial philosophy of Bush and Kerry's nominations would surely differ drastically.
A judge's judicial philosophy is his theory regarding the proper role of a judge in society. Judge Jerry Smith of the Fifth Circuit has compared a judge's role to that of an umpire in a baseball game. A good umpire neutrally applies the rules of the game to the situation before him. He does not alter his calls based upon his own preferences or the mood of the fans in the stands. Similarly, a good judge neutrally applies the law to the situation before him. He doesn't alter his calls based upon his personal policy preferences or his perception of the political situation.
Likewise, a good President or senator ignores politics and personal ideology when nominating or confirming judges. Instead, he looks for judges who will follow the rule of law.
It is admittedly difficult, but nonetheless crucial, to identify those individuals who are truly willing and able to act solely as legal umpires. President Bush has consistently indicated his commitment to identifying and nominating such candidates. His opponent has done precisely the opposite. John Kerry supported many activist judges nominated by Bill Clinton. He has blocked many of Bush's nominees based on concerns regarding personal ideology when he should have been evaluating their judicial philosophy. He has cooperated with his liberal colleagues in blocking Bush's nominees at every turn, based purely upon political considerations.
Kerry and his fellow liberal Democrats claim that they were not the first to politicize the judicial nominations process. Instead, they argue that Republicans started the standoff with their treatment of President Clinton's judicial nominees.
A comparison of Bush and Clinton's first terms in office shows the inaccuracy of these accusations. Bush made 66 judicial nominations immediately, during his first year in office. This was an unusually high number of nominations and should have given the Senate more time to conduct hearings and make decisions. Instead, the Senate took longer on average to process Bush's nominations than Clinton's. A shocking 40 percent of Bush's appeals court nominees were pending for one year or more during his first term, compared to a paltry 8 percent for Clinton. Several of Bush's first-term nominations have been pending for more than three years.
John Kerry applauds and supports this obstructionism every step of the way. By doing so, he demonstrates his support for a politicized judiciary, rather than one that acts as a neutral legal umpire.
Yet even these statistics do not reflect the true degree to which the judicial nominations process was politicized during Bush's Presidency. The best indicator of the degree to which Kerry and other liberal Democrats have become willing to use any tactic to stop Bush's judges for illegitimate reasons is their unprecedented use of Senate rules to filibuster judicial nominations.
Prior to Bush's Presidency, filibusters had never been used to kill a judicial nominee. During his presidency, seven judicial nominations have been filibustered (so far).
Traditionally, senators have restrained from using filibusters to block judicial appointments. The closest the Senate came to filibustering a judge was in 1968 when Lyndon B. Johnson nominated Abe Fortas to be Chief Justice of the Supreme Court. One attempt to go to an up-or-down vote failed, and Johnson withdrew the nomination. However, the historical record indicates that Johnson withdrew the nomination not because of the filibuster, but because he could see that Fortas did not have majority support in the Senate. Opposition to Fortas' nomination was bipartisan, in large part due to serious ethical problems alleged against him. Fortas eventually resigned from his position as Associate Justice on the Supreme Court due to these ethics concerns.
In sharp contrast, Bush's nominees have obtained majority support. Each of these nominees would sit on the bench today where it not for the obstructionism of a minority of liberal Democratic senators.
Bush and Kerry have demonstrated their drastically different views of the judiciary through their actions. Bush seeks judges who are willing to act in a restrained, neutral manner. Kerry blocks these judges. Bush supports judges who will act as neutral legal umpires. Kerry votes for activist judges, such as many of those appointed by Clinton.
A Bush Supreme Court nomination that falls in line with his past history of judicial nominations will be an asset. Such a justice will allow Americans to govern themselves; he will not legislate from the bench. A Kerry nominee is more likely to dictate to the American people what their laws should be.
Voters should remember this striking difference between the two candidates on November 2.
Tara Ross is a regular columnist for TAEmag.com.
By Tara Ross
http://www.taemag.com/issues/articleID.18183/article_detail.asp
The judicial nominations issue will be one of the most important facing the next President--especially if one or more Supreme Court vacancies occur, as anticipated. What a pity that this aspect of the Presidential campaign isn't getting more attention. The two candidates have strikingly different views on the judiciary, and the judicial philosophy of Bush and Kerry's nominations would surely differ drastically.
A judge's judicial philosophy is his theory regarding the proper role of a judge in society. Judge Jerry Smith of the Fifth Circuit has compared a judge's role to that of an umpire in a baseball game. A good umpire neutrally applies the rules of the game to the situation before him. He does not alter his calls based upon his own preferences or the mood of the fans in the stands. Similarly, a good judge neutrally applies the law to the situation before him. He doesn't alter his calls based upon his personal policy preferences or his perception of the political situation.
Likewise, a good President or senator ignores politics and personal ideology when nominating or confirming judges. Instead, he looks for judges who will follow the rule of law.
It is admittedly difficult, but nonetheless crucial, to identify those individuals who are truly willing and able to act solely as legal umpires. President Bush has consistently indicated his commitment to identifying and nominating such candidates. His opponent has done precisely the opposite. John Kerry supported many activist judges nominated by Bill Clinton. He has blocked many of Bush's nominees based on concerns regarding personal ideology when he should have been evaluating their judicial philosophy. He has cooperated with his liberal colleagues in blocking Bush's nominees at every turn, based purely upon political considerations.
Kerry and his fellow liberal Democrats claim that they were not the first to politicize the judicial nominations process. Instead, they argue that Republicans started the standoff with their treatment of President Clinton's judicial nominees.
A comparison of Bush and Clinton's first terms in office shows the inaccuracy of these accusations. Bush made 66 judicial nominations immediately, during his first year in office. This was an unusually high number of nominations and should have given the Senate more time to conduct hearings and make decisions. Instead, the Senate took longer on average to process Bush's nominations than Clinton's. A shocking 40 percent of Bush's appeals court nominees were pending for one year or more during his first term, compared to a paltry 8 percent for Clinton. Several of Bush's first-term nominations have been pending for more than three years.
John Kerry applauds and supports this obstructionism every step of the way. By doing so, he demonstrates his support for a politicized judiciary, rather than one that acts as a neutral legal umpire.
Yet even these statistics do not reflect the true degree to which the judicial nominations process was politicized during Bush's Presidency. The best indicator of the degree to which Kerry and other liberal Democrats have become willing to use any tactic to stop Bush's judges for illegitimate reasons is their unprecedented use of Senate rules to filibuster judicial nominations.
Prior to Bush's Presidency, filibusters had never been used to kill a judicial nominee. During his presidency, seven judicial nominations have been filibustered (so far).
Traditionally, senators have restrained from using filibusters to block judicial appointments. The closest the Senate came to filibustering a judge was in 1968 when Lyndon B. Johnson nominated Abe Fortas to be Chief Justice of the Supreme Court. One attempt to go to an up-or-down vote failed, and Johnson withdrew the nomination. However, the historical record indicates that Johnson withdrew the nomination not because of the filibuster, but because he could see that Fortas did not have majority support in the Senate. Opposition to Fortas' nomination was bipartisan, in large part due to serious ethical problems alleged against him. Fortas eventually resigned from his position as Associate Justice on the Supreme Court due to these ethics concerns.
In sharp contrast, Bush's nominees have obtained majority support. Each of these nominees would sit on the bench today where it not for the obstructionism of a minority of liberal Democratic senators.
Bush and Kerry have demonstrated their drastically different views of the judiciary through their actions. Bush seeks judges who are willing to act in a restrained, neutral manner. Kerry blocks these judges. Bush supports judges who will act as neutral legal umpires. Kerry votes for activist judges, such as many of those appointed by Clinton.
A Bush Supreme Court nomination that falls in line with his past history of judicial nominations will be an asset. Such a justice will allow Americans to govern themselves; he will not legislate from the bench. A Kerry nominee is more likely to dictate to the American people what their laws should be.
Voters should remember this striking difference between the two candidates on November 2.
Tara Ross is a regular columnist for TAEmag.com.