Let's Have a Fight About Judges
the weekly Standard Lets Have A F t udg About Judges On August 18, the U.S. Court of Appeals for the Tenth Circuit ruled that a U.S. District Court had inadequately considered the Eighth...
...The sheer volume of nominations necessary to keep these courts functioning makes close Senate scrutiny of appointees almost impossible...
...It's a perfectly legitimate device, in our view...
...A genuinely loopy and offensive conclusion, to be sure...
...Partisan politicking about the courts "is very sad," the Times's editorial page intones...
...Win or lose, it's good for the country to hear what the president thinks about the courts...
...We've steered clear of a few people who might have been fabulous judges but who would have provoked a fight that we were likely to lose," says the administration's chief judge-picker at the Department of Justice...
...Reasoned debate about judicial conduct is virtually impossible during election years, which lend themselves to intellectual intemperance...
...But Bill Clinton is always more interested in results than principle...
...Judge Henry was placed on the federal bench by President Clinton...
...And we know that the president has constructed his defense against the charge that a more expansive (i.e., liberal) vision might soon control the federal courts-with unpopular consequences-should he win in November...
...So prissy...
...This year's presidential campaign will have a lasting effect on the makeup of the federal judiciary...
...A national conversation about such matters is nothing to be afraid of...
...That conversation may be possible only during a presidential election...
...My concern with the administration is its reluctance to engage the public in any debates about judgeships," Alliance for Justice chief Nan Aron told Legal Times last September...
...It's also one the White House is eager to neutralize, as the recent brushfire of partisan back-and-forth over Judge Harold Baer makes clear...
...Dozens of opinions and dissents by these judges-like the Tenth Circuit ruling on Josephine Brown-are already circulating in conservative legal circles...
...There are far dumber and less consequential things they could be talking about...
...Baer is the Clinton-nominated district court judge who ruled that a 40-minute videotaped confession and $4 million of seized cocaine and heroin were inadmissible evidence at a drug trial because the five suspects in the case had been arrested illegally...
...And bodies are what Clinton has nominated, bodies that Senate Republicans have not really been able to oppose...
...In an average four-year presidential term, roughly a quarter of all federal judgeships become vacant...
...Some look quite juicy...
...This is a decent talking point...
...But it's not much of an argument...
...District Court had inadequately considered the Eighth Amendment claims of one Josephine Brown...
...But the tradition of congressional deference to presidential appointment powers should, and does, extend to the courts...
...In practice, Nan Aron's liberalism depends above all on a maintenance of America's jurisprudential status quo...
...It is simply not true, as a New York Times "news analysis" has it, that Baer "is an anomaly," that Clinton-appointed jurists have proved to be a purely "moderate, mainstream group" whose opinions will frustrate "Republican record-checkers" looking for campaign ammunition this year...
...Such turnover typically involves more than 160 judicial positions at the district court level, where the vast bulk of federal casework is performed...
...Yes, but here the president has acted deliberately to squelch nomination conflicts...
...There have been 185 Clinton appointments to the district, circuit, and Supreme courts...
...Nicely put...
...Fine, we say: Let's see the list and have that debate Nan Aron once claimed she sought...
...Nevertheless, we have learned something important from this rather clumsy inter-party skirmish...
...Brown is a transsexual prison inmate who argued that Colorado's refusal to provide her with estrogen and other medical therapy necessary to the maintenance of her gender identity constituted cruel and unusual punishment...
...Their flight from New York City police, Baer initially decided (he has now reversed himself), fell short of "probable cause...
...And the philosophical alignment of the Supreme Court, now split 5-4 on a series of politically sensitive issues-affirmative action, term limits, religion, federalism, and so on-may well be reversed...
...It may have no greater effect...
...Republicans are eager to use the president's judicial appointees against him in the coming campaign...
...All but four have won voice-vote approval in the Senate, and only two have earned significant Republican opposition: Rosemary Barkett, now on the Eleventh Circuit, and H. Lee Sarokin, now serving on the Third...
...And "responsible" opinion is in her corner...
...In Manhattan's Washington Heights neighborhood, the judge wrote, police are viewed as "corrupt, abusive and violent...
...And so contemptuous of the American voter's ability to make an intelligent judgment about, and exercise his democratic influence over, the third branch of our government...
...The Tenth Circuit decision in Brown's favor was written by Judge Robert Henry...
...Of course, these days Aron has changed her tune: "There's no need for the administration to engage in a discussion that is such a threat to judicial independence," she now suggests...
...The Clinton administration worries over this prospect and threatens to retaliate with a "so's-your-mother" collection of comparably unattractive rulings by judges appointed during the Reagan and Bush years...
...Both parties should have at it...
...So running away from the cops is rational, not suspicious...
...Granted, lifetime service on the bench is a bigger deal than a temporary job as assistant secretary of education, and the Senate's "advice and consent" responsibility is at its weightiest where judicial nominations are concerned...
...There have been no Barketts or Sarokins since Republicans took control of the Senate...
...On March 21, unwilling to wait for the judge to reconsider his ruling, the White House made the astonishing announcement that the president might seek Baer's resignation if he failed to change his mind...
...Until recently, the president's fear of Senate wrath on major court appointments has irked liberal judicial activists...
...Brilliant jurists-"Scalias of the left"-might be nice...
...We know that Bill Clinton's judgeships will be an issue in this year's presidential campaign...
...Federal judges serve for life, of course, and their evidentiary rulings, however stupid, are never "high crimes and misdemeanors," the only grounds for impeachment the Constitution allows...
...And the Clinton administration, its damage-control antennae vibrating convulsively, wanted nothing to do with it...
...In other words, Senate Republican approval of President Clinton's district court nominees hardly means that the GOP has pre-certified those judges' rulings...
...Hmmm...
...And under the guidance of Judiciary Committee chairman Orrin Hatch, the Republican Senate has been admirably- maybe even excessively-respectful of that tradition, for practical as much as philosophical reasons...
...the White House "threat" against Harold Baer was front-page news across the country...
...Clinton and his men contend that Republicans have no standing to criticize administration judicial appointments since Republican senators have opposed almost none of the judges in question during confirmation proceedings on Capitol Hill...
...David Tell, for the Editors...
...Except in the rarest circumstances, senators know that a president's lower-court nominees are at least minimally qualified- and little else...
...If Clinton is reelected, Democratically-appointed judges will, by the time he leaves office, once again dominate the appeals courts...
...But bodies, votes on the courts, are really all you need...
...Clinton's post-1994 circuit court nominees are low-profile lawyers without controversial backgrounds or potentially embarrassing paper trails...
...But isn't greater Senate attention to the more important federal appellate courts possible and necessary...
...How, the White House pointedly asks, can the GOP now complain about Baer-or any other judge who moved so easily through confirmation...
...And two days later, not to be outdone, Bob Dole said Baer "ought to be impeached...
Vol. 1 • April 1996 • No. 30
