Courting the Future

...With the "right" vacancies in the Seventh Circuit, its balance of power could be shifted to the left as well...

...circuits...

...In fact, the Clinton legacy in judicial selection is to say little about judicial philosophy, except implicitly by expressing commitment to abortion rights, and to say much about appointing women and minorities...

...The three judicial conservatives now on the court--Rehnquist, Scalia, and Thomas--are direct products of the Republicans' longstanding intention to pick such judges...

...With more than one conservative seat to fill, a Democratic president could establish a liberal activist court...

...There are close to 1,000 Arab educational institutions in Israel, with about 300,000 students--just about 25 times as many as in 1948, when the State of Israel was created, Ninety percent of Arab children attend school, probably "Contrary to propaganda.., the Arabs in Israel enjoy every civil right and have the same status under law as Jewish Israelis" the highest ratio of any Arab population anywhere...

...But history is fickle...

...But the intelligent voter obviously doesn't have the luxury of waiting to find out...

...32 Fe b r u a r y 2 o o o _9 The American Spectator The world is much focused on the developments in Judea/Samaria (the "West Bank") and the Gaza Strip, in which, for the most part, Israel has relinquished sovereignty and authority to the Palestinian Authority (P.A...

...And they exercise equity power...

...He may not establish adequate procedures for ensuring that the individuals he nominates share his judicial philosophy-the nightmare for conservatives is that there could indeed be more David Souters...

...Thus, 8n of these 82o federal seats are in the lower courts...

...Bush in fact declined an opportunity extended by NBC's Russert to say exactly that...

...District courts are not places for political cronies, but lawyers who, as Hatch points out, have a good understanding of federal law and evident judicial temperament...

...30 February 2 o o o _9 The American Spectator A NEW JUDGE EVERY WEEK Whether or not the next president has Supreme Court vacancies to fill, he most definitely will have lower court appointments to make...

...Berkeley's Yoo says there are just three circuits where judicial conservatives have a working majority--the D.C., Fourth (where-a rarity-a Democratic appointee often joins the conservatives), and the Fifth...

...And Clinton is all but certain to be shut out in his second term...

...Orrin Hatch told me he wants judges "who interpret the law, not make it up...

...Taking these seats together with the usual number of openings during a presidential term, it is fair to think that the next president probably will be able to appoint at least 4 ~ circuit judges...

...It is instructive and sobering to compare the condition of the approximately one million Arabs in Israel with that of the pitiful remnants of Jewry in Arab countries...

...In an interview, TERRY F, ASTI.AND is huhlisher of The American Sr~ectator...

...As in previous election years, the Republican candidates say they would appoint judicial conservatives...

...And increasingly there are important "final" decisions being handed down...

...It is unreasonable to think that most justices will (or can) follow their example...

...Please send me your videotape on three important aspects of Israel's strategic situation, fiery speeches by Yasser Ararat, and some memorable moments with Louis Farrakhan...

...This ad has been published and paid for by FLAME Facts and Logic about the Middle East P.O...

...For example, the Fifth Circuit's 1996 decision in the Hopwood case rejected the diversity rationale for affirmative action in admissions that many thought (erroneously) the Supreme Court had sanctioned in its landmark 1978 Bakke case...

...What are the facts ? . Israel is a Democratic Country...

...But there are just nine seats on the Supreme Court...

...Just before Christmas, 13 Republican senators, in a dispute with the White House ~- over recess appointments, vowed to block all of President Clinton's judicial nominees for the remainder of his term, a move that, if successful, would allow the next president to make the appointments...

...Arabic is taught in Jewish secondary schools...

...Recall the 1987 nomination of Robert Bork, as distinguished a lawyer as the country has produced in our time...

...In their campaign appearances, Democrats A1 Gore and Bill Bradley have said almost nothing about the kind of judges they would pick, philosophically speaking...

...Those who watch Senate races closely think the most likely Election Day scenario is one in which the GOP loses some seats but remains in the majority...

...Different religions, cultures, and social traditions co-exist...

...Gore thus is following Clinton, who during his campaigns advertised his commitment to finding judges committed to Roe--i.e., judicial liberals...

...Because there are four vacancies in the Fourth Circuit, a Democratic president would have the opportunity to shift the balance of power to liberals...

...And to attack the other side...

...The Bradley campaign did not return numerous phone calls seeking details on Bradley's views...

...Still, as Berkeley law Professor John Yoo, a former Supreme Court clerk who worked on the Senate ]udiciary Committee, points out, Brennan, Marshall, and Blackmun retired at ages well beyond the average, which is 71...

...There are more than 20 Arabic periodicals...

...But there are many who believe that the Arabs in Israel itself are a "persecuted minority...

...Republicans, who currently hold a 55-45 edge in the Senate, recently rejected a Clinton districtcourt nominee on grounds of judicial philosophy...

...On issues involving race, federalism, and religion, the conservatives hold the balance of power, with O'Connor and Kennedy joining Rehnquist, Scalia, and Thomas...

...McCain likes them, too, but also commends his fellow Arizonans William Rehnquist (appointed by Richard Nixon in 1973 and elevated to chief justice by Reagan in 1986 ) and Sandra Day O'Connor (a 1981 Reagan appointee...

...Reagan during his second term, Bush during his single term, and Clinton during his first term named two new justices each...

...and Bill Clinton in seven years has appointed 331...

...That would be a good question for the press--or the Republican candidates, who right now are talking among themselves --to put to Gore or Bradley...

...About 5,000 Arab students attend such schools...

...The very large number of lower court seats and the more rapid turnover of judges in the lower courts guarantee that the next president will have many nominations to make...

...Circuit court decisions may be reviewed by the Supreme Court, but it accepts very few cases...

...Current vacancies in the First, Third, Sixth, Eighth, and Tenth circuits would offer a Republican president the opportunity to create conservative working majorities in those courts, and to strengthen the conservative majorities in the Fourth, Fifth, and D.C...

...Israeli universities and technical institutions are freely available to the Arabs...

...POWER SHIFTS The 13 circuit courts of appeals are divided geographically and, with two exceptions, include three or more states...

...Yoo may overlook the Seventh and the Federal circuits, where conservatives have strength...

...Since the surrounding Arab states, with the exceptions of Egypt and recently of Jordan, are the avowed enemies of Israel and are dedicated to its destruction, this exemption is granted by the Israeli government to its Arab citizens, so as to spare them conflicts of loyalty and conscience...

...District judges also address questions of first impression, and on these occasions, too, the interpretive approach that a judge brings to his work can matter...

...In past presidential campaigns, the press has asked Republican candidates about these matters and obsessed on Roe v. Wade, but queried Democratic candidates very little...

...Ti~i~ATM ENT...

...On "Meet the Press," Russert conducted an interview with Bush, and then another with McCain, and then he interviewed Gore and Bradley together...

...Today the three oldest justices--Rehnquist, 75, Stevens, 79, and O'Connor, 69--are also the three with the longest tenures...

...Gore spokesman Chris Lehane says Gore would look for "a judge or justice...who would interpret the Constitution in the way that he reads 28 Fe b r u a r y 2 o o o _9 The American Spectator the Constitution...

...On the other hand, there is a majority, or at least a presumptive majority, in support of the abortion liberty...

...Oliver said the program, in which church-related schools participated, violated the First Amendment's "separation of church and state...

...Roosevelt was the last president to choose five-ninths of the court in a single term of office, his second...

...In zoo 4 Stevens, the oldest justice, will be 84 and Rehnquist, the next oldest, 80...

...Thinking about tomorrow--the fall campaign--he tells audiences that religious conservatives including Jerry Falwell and Pat Robertson would vet prospects for the bench if a Republican were elected...

...Sometime during the next presidential term the court probably will decide two controversial issues now in various stages of litigation--the constitutionality of school choice and of partial-birth abortion...

...For this reason, the election of a president always carries with it the possibility that he will use his appointment power to affect the jurisprudential direction of the federal judiciary...

...And here he will have many opportunities to advance his judicial philosophy...

...They publish what they please, subject only to the same military censorship as Jewish publications...

...The same five are usually vigilant about ensuring the authority of the states vis-a-vis The American Spectator _9 February 20 o o 29 the federal government, and tend to favor government accommodation of religion...

...Recent experience suggests that when the party opposite the president's controls the Senate, the likelihood of a fight over a nominee who has a clearly defined judicial philosophy increases...

...In light of these facts, it's reasonable to think that the next president will choose between 15o and 2oo lower-court judges...

...But the First Amendment was originally intended to permit nondiscriminatory aid to religion...

...The average length of service for a circuit judge is several years less than that for a Supreme Court justice, and the average for a district judge is a bit less than that for a circuit judge...

...Republican presidents filled ten of them, Democratic presidents just two (both by Clinton...

...Stevens, O'Connor, Kennedy, and Souter have voted against overruling Roe, and while neither Ginsburg nor Breyer have had occasion to vote on the issue, both have endorsed abortion rights...

...Israeli Arabs Enjoy Full Equality in Law and in Fact...

...Every Knesset, since the founding of the State in 1948, has had Arab and Druze members...

...Israeli law grants women equal rights, including the right to vote and to be elected to public office, prohibits polygamy, child marriage, and the barbarity of female sexual mutilation...

...The strength of judicial liberals in the Second and the Ninth is such that it would take a higher than usual number of retirements, and the "right" ones besides, to give a Republican president any chance of making those circuits more evenly balanced...

...A judge repairing to this history and supporting precedents would have sustained the Ohio program...

...Circuit, where there are two...

...Democratic appointees in three...

...Their power extends only to the cases before them-their rulings do not obligate other judges in their districts, let alone other districts...

...No vacancies occurred during Jimmy Carter's presidency...

...Thus, the decisions the Supreme Court doesn't review are the last word...

...My name is I live at In State _ _ Zip Mail to : FLAME...

...There are some David Souters (judicial liberals appointed by Republican presidents) on the appeals courts, as well as some Republican appointees who float in the jurisprudential middle, like O'Connor...

...In contrast to the non-Israeli Arab world, Arab women in Israel enjoy the same status as men...

...Its purpose is the research and publication of the facts regarding developments in the Middle East and exposing false propaganda that might harm the interests of the United States and its allies in that area of the world.Your tax-deductible contributions are welcome...

...Presented with a Rehnquist or O'Connor vacancy, a Democratic president could, by appointing a judicial liberal, create a five-justice majority willing to narrow or even reverse key decisions on race, federalism, and religion...

...There is some question whether or not they are better off than before...

...But from their long public records it's clear that, like Bill Clinton, they would choose judicial liberals...

...Box 590359 _9 San Francisco, CA 94159 FLAME is a tax-exempt, non-profit educational 501(c)(3) organization...

...The next president also could serve without making an appointment...

...The most sensible speculation--the one informed by considerations of each justice's age and length of service--is that two seats will open, and thus that the next president will appoint two new justices...

...If the issues were before the court today, the vote likely would be 5 to 4, one way or the other...

...Israeli universities are renowned centers of learning in the history and literature of the Arab Middle East...

...Of this group, the most likely to leave the court would seem to be Ginsburg, who recently underwent surgery for colon cancer, or Scalia, who, as the rumors go, has grown bored with the court's work...

...These two events suggest the importance both parties attach to judicial selection in this election year...

...As for the rest, all of whom have been appointed since a986 and the oldest of whom is Ginsburg, 66, none, to judge by age and length of service, seems that likely to step down during the next presidential term...

...The court has been in business zlo years, and it has had xo8 justices...

...I include my tax-deductible contribution in the amount of $ /8c My contribution is in the amount of $100 or more...

...They make findings of fact that are rarely disturbed by the courts above...

...Yes~ I want to help the publication of these ads and in clarifying the situation in the Middle East...

...It is thus reasonable to expect that the next president will fill the bulk of these seats as well as any additional vacancies occurring between now and January 20, 2ool...

...And why not a question about Judge Oliver's decision in the school voucher case...

...Gore already is doing this...

...CA 94159...

...George W. Bush told NBC's Tim Russert that he wants "strict constructionists"--and so did John McGain...

...Of course, a Gore or Bradley landslide would probably produce a Democratic Senate...

...Education and literacy of the Arab population in Israel is as high as and probably higher than in any Arab country...

...The Supreme Court didn't take the appeal, so Hopwood is the law for the states in the Fifth Circuit (Texas, Louisiana, and Mississippi...

...There are daily TV and radio programs in Arabic...

...These five regard racial preferences as presumptively unconstitutional and are dubious about redistricting by race...

...Almost all of our revenue pays for our educational work, for these clarifying messages, and for related direct mail...

...Of the 153 judges now sitting on the courts of appeals, 83 were named by Republican presidents and 7 o by Democratic presidents...

...And speaking of the Senate, its composition bears on the success a president might enjoy in appointing judges who share his judicial philosophy...

...If the two justices most likely by reason of age and length of service to retire during the next presidential term instead wait it out, the composition of the court could very well be the same then as it is today...

...So, too, would be whether they would appoint justices committed to expanding the right of privacy to include a right to die...

...Arabs are exempted from military duty and are not required to perform any compensating civilian service...

...Israeli Arabs--Moslems, as well as many Christian denominations-are free to exercise their faiths, to observe their own weekly day of rest and holidays, and to administer their own internal affairs...

...PROBABLY TWO NEW JUSTICES Since Nixon's election in 1968 , there have been twelve Supreme Court vacancies...

...Israeli health institutions are freely open to all Arabs, on the same basis as they are to Jews...

...This pattern is repeating itself this year...

...The 2ooo election stands to be a defining election in at least one respect-for control of the federal courts...

...Jews have been living in Arab countries for almost 2,000 years...

...For the court to reconsider and reverse Roe, a Republican president would have to replace at least two of the six justices committed to abortion rights (from among, say, Stevens, O'Connor, or Ginsburg) with judicial conservatives...

...Russert questioned Bush and McCain about judicial selection, bringing up Roe v. Wade, but with Gore and Bradley, he neglected to ask about these matters...

...It wouldn't be hard to give the Democrats equal treatment...

...Lehane says that in Gore's reading there is "certainly a right to privacy...

...The majority of these will be district judges, who preside over trials in the federal system...

...Like all other Israeli citizens, they have full rights to vote and to hold elective office...

...He would have the chance to do the same in the Fifth Circuit, where there are three vacancies, and in the D.C...

...Breaking it down by court, Republican appointees have The American Spectator _9 Fe b r u a r y 2 o o o 31 the edge in nine...

...That could happen...

...Still, their power is substantial...

...Hatch, who has served z 3 years on the Senate Judiciary Committee and knows more about judicial selection than any presidential candidate in a long time, goes so far as to use Souter as a negative model...

...Republicans aren't getting a free ride on judicial selection, and the Democrats shouldn't either...

...Not only that, the next president almost certainly will be in a position to establish ideological dominance in most of the circuit courts of appeals, which increasingly have the final say on contentious issues...

...he faced a Democratic Senate hostile to his legal views that was predisposed to reject him, and did...

...They also hold up the same justices as models for judge-picking...

...Both Arabs and Druze hold seats in the Knesset, the Israeli parliament...

...In December federal Judge Solomon Oliver, Jr., a Clinton appointee, declared unconstitutional the school voucher program enacted by the Ohio legislature...

...Each community has its own religious councils and courts, and has full jurisdiction over religious affairs, includlng matters or personal status, such as marriage and divorce...

...and there is an equal number of both in one...

...They enable us to pursue these goals and to publish these messages in national newspapers and magazines...

...Clinton's appointments-54 so far-have tipped several circuits into the hands of judicial liberals...

...By replacing a judicial liberal (say Stevens or Ginsburg) with a judicial conservative, a Republican president could strengthen the current working majorities on race, federalism, and religion...

...Notably, no candidate is willing to say Justice David Souter, a 199o Bush appointee whose record so far defines him as a judicial liberal, is a suitable model for the judges he would pick...

...Israel's Arabic press is the most vibrant and independent of any country in the region...

...Thus, on average, a new justice has been appointed iust about once every two years...

...Under the Constitution, the president nominates and, subject to Senate confirmation, appoints judges...

...The Republican candidates regard Roe as bad law, if law at all...

...B Y T IZ R R Y E A S T L A N D P n early December, the National Abortion and Reproductive Rights Action League ran a television ad in New Hampshire claiming that George W. Bush "would appoint judges who would overturn the Supreme Court's 1973 Roe v. Wade decision that legalized abortion...

...IEQUAL...

...Bush, for example, praises Justices Antonin Scalia (a 1986 Ronald Reagan appointee) and Clarence Thomas (a 1991 George Bush appointee...

...All transactions in the Knesset are simultaneously translated into Arabic, and Arab members may address the Knesset in Arabic...

...It's a mistake, however, to think that the Republican appointees are all judicial conservatives...

...Consider that three of the last four justices to retire did so when they were well into their eighties-William Brennan at 84, Thurgood Marshall at nearly 83, and Harry Blackmun at 85...

...In summary, they enjoy the highest standards of living and liberty of any Arabs in the Middle East...

...And with the right vacancies in the First Circuit, its liberal majority could be strengthened...

...In the assisted suicide cases, Ginsburg and Breyer did not rule out the radical proposition that the Constitution encompasses a right to assisted suicide...

...They are primarily courts of "error correction," typically hearing and deciding appeals from the district courts...

...I could guarantee that...

...And current vacancies would give him opportunity to bolster liberal majorities in the Third, Sixth, Eighth, Ninth, and Tenth circuits...

...Even so, it is not unheard of for district judges, acting on their own reading of federal law and the Constitution, to narrow the reach of Supreme Court decisions they disagree with or even to issue decisions completely at odds with what the Supreme Court has held...

...Protection of such diversity is embedded in Israel's traditions and confirmed by the government...

...These figures alone would seem to prove that things can't be all that bad for Arabs in Israel...

...All religious communities in Israel enjoy the full protection of the State...

...No one can say for sure what kind of opportunity the next president will have to alter the direction of the courts through the judges he picks...

...Gore, in other words, believes the Constitution actually supports the Court's holding in Roe...

...The court also has four judicial liberals--John Paul Stevens (Gerald Ford's lone appointee), Souter, Ruth Bader Ginsburg (Clinton's first appointee), and Stephen Breyer (Clinton's second...

...About 20% of the population (over one million people) are non-Jews, most of them Arabs, and some Druze...

...This past year, for instance, the court reviewed only a handful of the 5,323 cases decided in 1998 by the U.S...

...O'Connor, now in her 19th year, will hit the z3-year mark in zoo 4. Though none of these three justices has any serious health concerns, each is widely regarded as the most likely, by reason of age and length of service, to step down...

...territories, and 179 seats on the 13 circuit courts of appeals, which cover the nation and the territories...

...This would suit history just fine...

...It is official policy of the Israeli government to foster the language, culture, and traditions of the Arab minority, in the educational system and in daily life...

...No David Souters," he says...

...There were about 900,000 Jews in Arab countries in 1946--now there are fewer than 25,000...

...And the smart betting is that the next president will be able to name two new justices, including probably the next chief justice, and through his choices ensure a Supreme Court majority to his ideological liking...

...Says Hatch: "Those positions [circuit judgeships] are as important if not more important than the ones on the Supreme Court...

...But there are now over one million Arabs in Israel, as against 150,000 in 1948--an almost seven-fold increase...

...Few of these vacancies are likely to be filled during zooo-- none if the senators vowing to block all of Clinton's judicial nominees prevail...

...That's a per-year average of 47 appointments...

...Instead, he must make reasonable assumptions about what is likely to happen...

...Gore also is likely to follow Clinton in pursuing women and minorities for the bench...

...A question for the campaign is whether the Democratic nominee will be pressed to say much about judicial selection, especially the legal views of the judges he would appoint...

...There are 632 district judgeships distributed among the 95 judicial districts located in the 50 states, the District of Columbia, and the U.S...

...Or it could allow those rulings to "evolve" leftward...

...And whether a Democrat or a Republican, the next president will likely have the opportunity to pack the courts with his kind of judges...

...Nixon appointed four new justices during his first term, Dwight Eisenhower three during his second, and Harry Truman four during what would have been Roosevelt's last term...

...The literacy rate among Israeli Arabs is 95%, virtually the same as for Israeli Jews...

...To put it another way: These presidents put a new judge on the lower courts almost once a week on average...

...Israeli health standards are by far the highest in the Middle East...

...There is, however, one difference between the "rights" of Arabs and Jews in Israel...

...Arabic is an official language in Israel, together with Hebrew...

...And there are two justices of indeterminate judicial philosophy who float between the conservatives and the liberals, O'Connor and Anthony Kennedy (a 1988 Reagan appointee...

...The campaign has generated predictions from the candidates and pundits alike that the next president could put three to five new justices on the court...

...Israel is an open, pluralistic, and egalitarian society...

...Of the 179 appellate judgeships distributed among the 13 appeals courts, z6 are currently vacant...

...during his single term, George Bush named 187...

...San Francisco...

...And he may compromise his nominating power by yielding it, too often and in key instances, to senators with parochial interests...

...District judges generally follow the decisions of their circuit court and the Supreme Court...

...By long tradition, senators already have substantial influence upon a president's district-court choices...

...Box 590359...

...If Congress creates additional lower court judgeships-as it has done from time to time during the past two decades, most recently last fall, when it established nine more district judgeships--a president will be able to select even more judges...

...In criminal cases, they have argued in dissent for the expansion of the exclusionary rule, which excludes from trial illegally obtained evidence, and they are reluctant to vote for the imposition of the death penalty...

...It's one thing to ponder the opportunities the next president seems likely to have in picking judges, quite another to say that he will use his appointment power to further his judicial philosophy...

...The holy sites of all religions are administered by their own authorities and protected by the government...

...Under Arab dominance, they were always third-class citizens and subject to harassment and persecution...

...Among the professions, he says, only symphony conductors exceed that...

...It has thus vastly changed the status of women, to far above that of any country in the region...

...consider the school desegregation cases, where district judges ordered busing...

...Dissenting in the x995 Adarand case, in which the court held against racial preferences, Ginsburg and Breyer interpreted the holding as "one that allows our precedent to evolve, still to be informed by and responsive to changing conditions...

...Ninety-eight percent of the Arabs in these territories live now under the rule of the P.A...

...The next president may turn out to be only weakly committed--if committed at a l l - t o using judicial selection to influence the ideological direction of the courts...

...Judicial philosophy will matter significantly in the resolution of these issues...

...We have virtually no overhead...

...Russert asked Bush which justice he really respects...

...Israeli and Druze men are required to do three years of military service and then serve one month every year until they are 50...

...Two of them-- Rehnquist and Stevens- already have exceeded the average length of service for justices, which Henry Abraham of the University of Virginia, author of Justices and Presidents, calculates at 23 years...

...The issue is too important for the country not to know what's at stake...

...On both issues it's hard to predict how the court will come out...

...Court of Appeals for the Fourth Circuit...

...Sometimes a party losing before a three-judge panel may succeed in getting the entire court to rehear the case...

...But the highest number of courts of appeals that could fairly be called conservative is five...

...The numbers tell a story: During his two terms, Ronald Reagan appointed 375 lower court judges...

...Or to overruling the Supreme Court's decisions against racial preferences or those supporting federalism and limited government...

...Contrary to propaganda and to what many believe, the Arabs in Israel are full-fledged citizens, enjoy every civil right, and have the same status in law as Jewish Israelis...