The Public Policy / Overloading the Circuits
Hatch, Orrin G.
"The Public Policy / Overloading the Circuits" by Orrin G. Hatch On March 4, Charles Winberry, an amiable lawyer and politico from North Carolina, became the first nominee to the federal bench to be rejected by the...
...And increasingly some of us who have participated in these affairs are asking ourselves if this is right...
...No armies of reporters assess the prospects of the nominees, no cameras focus upon those being elevated to permanent positions of Orrin G. Hatch is the junior United States Senator from Utah...
...So uncritical has the Judiciary Committee been in weighing upon these nominations that not a single vote of opposition was registered against one nominee who, when confronted with the question of how he would resolve differences between his conscience and the clear letter of the law, responded unhesitatingly that he would be obliged to abide by the former...
...legacy...
...As a partisan, I am apprehensive that many of the policies likely to be adopted by what I hope are future Republican majorities in Congress are likely to be tested severely by the Carter "windfall" judiciary...
...Circuit, the transformation of the Federal bench has been less visible, but no less dramatic...
...President Carter's four new nominees to this panel have been: Abner Mikva, a highly respected but undeniably left-wing congressman from the silk-stocking suburbs of Chicago...
...Harry Edwards, a black law professor from the University of Michigan noted for his support of "affirmative action...
...The National Law Journal has observed, for example, that individuals with "strong liberal" backgrounds have been placed on, and are likely to dominate, the second and ninth circuit courts in New York and California, respectively...
...The Omnibus Judgeship Act of 1978 established 117 new federal district judgeships and 35 additional circuit judgeships...
...There is usually no press and no audience, just a few bored staff members and one or two senators...
...In fact, the few controversies that have developed before the Committee over recent nominations, Winberry notwithstanding, have been over the issue of race...
...Beyond the D.C...
...What is the nature of this...
...In a study it conducted last year, the American Judicature Society concluded that only 3 percent of President Carter's appointees to the circuit courts viewed themselves as "conservative...
...They have allowed the administration to set the priorities for the confirmation process...
...Whatever its virtues during normal times, when nominees appear before the Committee only infrequently, such thinking is dangerous when the entire judicial branch is being refashioned over a short period of time...
...To a man (or, increasingly, to a woman), they identifed themselves as "very liberal," "liberal," or "moderate," and as Democrats, many of them actively and partisanly so...
...Not surprisingly, in their responses to a questionnaire prepared by Senator Paul Laxalt of Nevada and myself, recent nominees spoke with eerie unanimity on the need for a "flexible" Constitution to meet the "evolving" needs of society...
...It has occurred in an atmosphere that could not be more different from that attending the selection process for the executive branch...
...Moreover, the spirit of institutional comity which prevents senators from questioning the qualifications of candidates from their colleagues' states is manifestly abused when these candidates fall into a sustained ideological pattern...
...A specific case of the philosophical uniformity among recent appointments is the District of Columbia Circuit Court, arguably the second most influential court in the land because of its jurisdiction over much of our nation's regulatory and environmental law...
...The Republicans in the Senate can be faulted for not having recognized the ways in which the regular confirmation process differs from the process set in motion by the Omnibus Judgeship Act...
...This, at a time when there is growing concern that the federal judiciary has already been too quick to usurp the legitimate prerogatives of other branches, and other levels, of government...
...national influence, and no commentators worry over the nuances of their public statements...
...On this broader issue, hardly any of the new wave of nominees being processed under the 1978 Omnibus Judgeship Act are questioned at all...
...In fact, fi~r most senators, once the Committee has determined the legal competence of a nominee, and ensured his compliance with a modicum of ethical standards, it has done its job...
...After all, it has been the federal judiciary, not the executive and certainly not the legislative branch, that has been in the forefront of change in recent years in the areas of race relations, crime and punishment, abortions, apportionment, women's rights, educational policies, land-use planning, federal-state relations, and the environment...
...They have cooperated with them in efficiently handling the unprecedented flow of nominations...
...Patricia Wald, a Deputy Attorney General in the Carter Justice Department best known for her "progressive" views on "children's rights" (she has recommended, for example, suffrage at age 13...
...Yet, were it not for these allegations, there is little reason to suppose that Winberry would have been turned away, especially on the basis of his "judicial philosophy," whatever its ultimate nature...
...No wonder Abram Chayes of the Harvard Law School, in a speech arguing that the "public interest" law movement should explicitly commit itself to economic redistribution, said that the "legacy of the administration" on the D.C...
...A court stenographer records the desultary exchanges...
...Winberry earned this distinction because a coalition of Democrats and Republicans, including myself, thought him rightly disqualified by certain allegations of ethical and criminal wrongdoing...
...OVERLOADING THE CIRCUITS by Orrin G. Hatch On March 4, Charles Winberry, an amiable lawyer and politico from North Carolina, became the first nominee to the federal bench to be rejected by the Senate Judiciary Committee in 43 years...
...Judiciary Committee nomination hearings are held in a large, dark room in a remote corner of the Dirksen Senate Office Building...
...More important, as an American who believes strongly in the constitutional principles of checks and balances, federalism, and the separation of powers, I am concerned by the school of jurisprudence, now taking deep root in our judiciary, that does not, to my mind, respect these principles...
...Although it is difficult to discuss these matters with great certainty, it is likely that the Carter bench will be far more inclined toward "judicial activism" than the federal courts have been in the past...
...In these instances, the Committee minutely examines nominees for evidence of membership in organizations without sufficient numbers of blacks or other minorities...
...This increased the total number of federal court positions by nearly one third...
...With normal levels of attrition, this means that, whatever happens in November, President Carter will probably be responsible for appointing nearly one half of the federal bench by 1981, a legacy that will persist until well into the twenty-first century...
...and Ruth Bader Ginsburg, a Columbia University law professor best known for her feminist views and active participation in the ERA effort...
...Court will be "superb and with us for a long time...
...There are no clear, commonly accepted standards by which nominations are weighed...
...Barring unforeseen developments, these nominations for lifelong positions in the judiciary are approved by the full Committee without debate, by a voice vote, and reported to the full Senate, where they are approved finally under similar circumstances...
...In addition, it scrutinizes the patterns of a nominee's judicial decisions for evidence of racial bias, and it review.s a nominee's clerkhiring policies for the same thing...
...Professor Sheldon Goldman of the University of Massachusetts has observed that the Carter appointees are more "liberal" than their predecessors, more "sensitive" to matters of civil liberties, and more likely to affect the laws governing the environment, labor, and race and sex discrimination...
...But how much less important will these people be to the tenor of our society...
...The casualness notwithstanding, what has been taking place here is nothing less than the transformation of an entire branch of the national government...
...But they have not scrutinized them, nor have they drawn the public's attention to the events taking place here...
...This need for "balance" on the court manifestly does not encompass philosophical balance...
...Why haven't we pursued with similar tenacity signs that nominees subscribe to jurisprudential philosophies at variance with a large number of the American people and their representatives in Congress...
...Another nominee, receiving similar approval, described a 22 THE AMERICAN SPECTATOR OCTOBER 1980 recent Supreme Court decision limiting the scope of school busing as the "culmination of a national anti-black strategy" which is in turn fueled by Congress inclined toward policies "which drip with racist anti-city and anti-busing features...
...The defects, flaws, and ideological biases THE AMERICAN SPECTATOR OCTOBER 1980 23...
...Why has the confirmation process taken place amidst so much silence and inattention ? At least in part, this is attributable to the fact that most senators (and I am no exception) have only the vaguest idea of just what their role ought to be in the confirmation process...
...During the Winberry nomination, for example, senators sharply disagreed over whether a legal standard of criminal guilt ("beyond a reasonable doubt") was necessary before the nomination could be properly rejected...
...Despite his "commitment" to base judicial selection on merit, President Carter has remarked that, "If I didn't have to get Senate confirmation of all my appointees, I could just tell you flatly that 12 percent of all my judicial appointments would be black and 3 percent would be Spanish-speaking and 40 percent would be women and so forth...
...Never mind that a nominee is "liberal" or "conservative," "activist" or "strict constructionist," with or without sympathy with the judicial trends of the day...
...To question him on his jurisprudential views would be somehow inappropriate--or so it is thought...
...that are countered, or at least tempered, by a nomination process that occurs over a long period of time are only exacerbated when the process is compressed...
...Sometimes, six or seven nominees are processed by the Committee within an hour...
...In the month of June alone federal judges ordered the army to upgrade the dishonorable discharges of veterans involved in drug-related activities, dictated which textbooks were to be considered by Mississippi school districts, and ordered public funds appropriated for purposes expressly rejected by large majorities of both houses of Congress...
Vol. 13 • October 1980 • No. 10
