One Man's Activist

...It is fair to say that for the most vocal critics in today’s debate, judicial activism is conveniently tossed around as a mearis of condemning any position that doesn’t fit the critic’s ideological mold...

...the ever-more powerful role of government in social and economic matters, and concomitant with that, the implicit devaluation of the rugged, Darwinian individualist...

...The 11th Amendment to the Constitution explicitly excludes from the federal judicial power only suits “against one of the United States by citizens of another State...

...the refusal of those outside the favored circle of power and privilege-women, blacks, homosexuals--to stay in their place...

...Then came the Republican takeover of the Senate in 1994...

...This year’s Congress seems to be following the same route: As of September 30, the Senate had confirmed just 18 judges, leaving 96 vacancies on the federal benchincluding around 30 that the Administrative Office of the United States Courts calls “judicial emergencies,” judgeships dilled for more than 18 months...

...Independents like Deputy Solicitor General Andrew Frey, who had given $2S to a gun-control group, were also rejected...

...Or, as American Bar Association President and staunch conservative N. L,ee Cooper puts it: ‘Activism [is] a phrase that, like beauty, seems to be in the eye of the beholder...

...With the arrival of Justice Kennedy in 1988, however, the balance shifted, and with its ruling on the 1989 Richmond, Va., case, the Supreme Court struck down some 236 state and local affirmative action plans...

...The “Impeach Earl Warren” signs that went up all over the South in the wake of the Brown school desegregation decision were among the first expressions of that reaction...

...The Republicans justify themselves by arguing that the damage they’re inflicting is all in the name of defending the constitutional separation of powers against judicial activism...

...Two notable exceptions are Bork‘s and Thomas’ appointments to the Supreme Court-though not their appointments to the circuit court...

...After numerous legislative failures, Edwin Meese and other die-hard conservatives decided that the only way to radically change American law was by tilting the federal bench sharply to the right...

...For his part, Sen...

...Action Packed Despite DeLay and company’s condemnation of judges who they say “have thrown out the Constitution” in favor of their own wisdom, over the years, it is the Supreme Court’s conservatives who have frequently done just that...

...Some slots have been vacant since 1994...

...Grassley eventually scaled back his demandsafter all, how much intimidation is necessary...

...They have been particularly incensed over a few recent decisions setting aside death sentences, excluding evidence in a drug case, and blocking the implementation clf the California referendum ending affirmative action, programs...

...The Republicans, though in the minority in 1993-94, threatened to challenge nominees they considered too liberal...

...HERMAN SCHWARTZ is the author of Packing the Courts: The Conservative Campaign to Rewrite the Constitution...

...By and large, however, the system has managed to keep this activism within accepted limits...

...During Franklin Roosevelt’s administration, when the largely conservative Supreme Court was striking down New Deal legislation, liberals were up in arms about jurists’ overstepping their constitutional bounds...

...The federal courts were crucial to these changes, making them a natural target for the backlash...

...For example, in the 1976 case Nat’l League of Cities v. Usery, Chief Justice William Rehnquist (then an associate justice) succeeded in coalescing a majority to overturn federal legislation requiring state and local governments to meet the minimum-wage and maximumhours provisions of the Fair Labor Standards Act...

...And Judge Robert Bork shocked even his allies with a proposal to allow a majority of either house of Congress to overrule federal or state court decisions...

...Bill Clinton’s victory in 1992 and a Democratic Senate gave liberal Democrats a chance to restore some balance to the federal courts...

...The House Judiciary Committee, for instance, has held hearings on a proposed constitutional amendment to eliminate the life tenure for federal judges that is the precondition for their independence...

...and Philip Lacovara, one of Washington’s most distinguished attorneys who, though a Goldwater supporter, joined a lawyers’ civil rights group, were vetoed...

...Moreover, all constitutions and most statutes are the product of compromises, many of which are deliberately ambiguous in order to paper over differences that cannot be bridged, only bypassed...

...Men (and an occasional woman) from the far right of the judicial spectrum were appointed en masse...

...Their current campaign against “liberal judicial activists” is part of an ideological struggle that began in earnest as a reaction to the transformation of American life that started in the 1950s: the increased openness and freedom...

...Clinton’s response was to avoid nominating judges who could be labeled as clearly liberal...

...Now, Clinton’s judicial nominees and appointees alike find themselves under attack for their “liberal activism”-despite the fact that conservative activists like Clint Bolick have conceded that Clinton’s nominees have been “moderate...

...Moderates like Republican Judith Whittaker, who made the mistake of supporting the Equal Rights Amendment...

...Since the Nixon appointees took over in 1972, the conservative majority has steadily cut into the Warren Court decisions establishing rights for the accused...

...In that case, she voted with her colleagues to order a new death-sentence hearing for a convicted murderer...

...The result was a transformation of the federal judiciary as 12 years of Reagan-Bush appointees put solid conservative majorities on almost all the federal courts...

...Among their favorite tactics is the imposition of increasingly intrusive requests for the nominee’s opinions...

...That’s the way the system is supposed to work...

...With an eye toward weeding out future judicial activists, GOP senators have virtually hijacked the appointment process...

...And just this year, the court overturned the Religious Freedom Restoration Act, a law passed unanimously in the House and by a 97-3 vote in the Senate, which sought to expand protection for religious freedom, particularly for minority sects...

...Their stated goal, according to DeLay: “The jud:ges need to be intimidated...

...Because of Republican footdragging, however, Morrow’s nomination didn’t come up for a floor vote during the 1996 session...

...Disregarding its long-standing policy not to hear state cases involving federal constitutional questions if those cases could be decided under state law, the court has reached out to overturn decisions of more liberal state courts...

...Hands Off the Courts Truth be told, all judges are “activist...

...Potential nominees were asked their views on abortion, school prayer, unions, and other controversial matters...

...Other GOP legislators have pushed for even more direct action to keep “activists” off the bench...

...They have to be, particularly in constitutional cases...

...Such well-known and not-so-well-known conservatives as Sandra Day O’Connor, Anthony Kennedy, Antonin Scalia, Clarence Thomas, Robert Bork, Richard Posner, and Kenneth Starr were appointed-without objection, in all but a few cases...

...Of course, some partisanship is inevitable, especially at the Supreme Court level...

...That came to an end with the arrival of Anthony Kennedy who, with a few notable exceptions, has consistently voted with the Rehnquist-ScaliaThomas-O’Connor bloc...

...Of course, in the current antigovernment climate, the argument that the justices are simply curtailing federal power in order to honor states’ rights is a popular one...

...On the West Coast, oral arguments in some 600 cases were canceled last year, and the Second Circuit in New York has had to cancel sittings as well...

...Likewise, Nebraska Supreme Court Justice David Lanphier was ousted last November for having voted against a term-limits law and in favor of a retrial for some defendants convicted of second-degree murder...

...As a result, a recent study by three political scientists found that the Clinton judges are less liberal than President Jimmy Carter’s and quite similar to those of President George Bush, except that there are more minorities and women among the Clinton group...

...A conservative president can naturally be expected to nominate somewhat conservative judges, and vice-versa...

...Today, of course, it’s the conservatives who are up in arms...

...In fact, the political debate over “judicial activism” has undergone a 180-degree turn in the last 70 years...

...What has kept the system running smoothly in the past has been the understanding that it is the president’s prerogative to nominate any jurist he feels has the intellectual mettle to do the job well...

...Less than two months later, she was denied reappointment in a routine retention election, the victim of a Tennessee Republican Party campaign against her...

...Judiciary Committee Chairman Orrin Hatch has declared he will not “stand by to see Judicial activists named to the federal bench.’’ To this end, Hatch and his fellow Republicans have instituted a massive slowdown on judicial appointments...

...More recently, this June the five conservative justices on the court overturned the Brady Gun Control bill because it required local sheriffs to do a background check on a prospective gun purchaser...

...As in the Nat’l League of Cities case, the conservative justices conceded that they could not actually derive any limitations on federal power from the text of the 10th Amendment, which simply “reserves” to the states the “powers not delegated to the United States...

...This May, Barr joined Majority Whip ‘Tom DeLay of Texas in calling for the impeachment of judges as a “proper tool” for “political offenses,” with an impeachable offense defined by DeLay as “whatever a majority of the House of Representatives considers it to be at a given moment in history...

...Many of the liberal activist “horrors” cited by DeLay et al., for example, were reversed by higher courts, rightly or wrongly...

...It is also flawed...

...One trial judge in Illinois put all of his civil cases on hold and went an entire year hearing only criminal cases, while a San Diego district court holds only about 10 civil trials a year...

...Hatch, DeLay, Barr, and their friends threatening to impeach the high court’s most active “activists”?S iLmpleL: ike their conservative counterparts on the cou.rts, congressional Republicans don’t object to “judicial activism” per se...

...In Tennessee, for example, Judge Penny J. White heard only one death penalty case in her 19 months on the state Supreme Court...

...Such delaying tactics have already borne fruit...

...However, this cover is no longer available, as the president has now nominated some 70 judges, many originally sent up during the last Congress...

...Phil Gramm of Texas pledged to block a Clinton nominee on the basis that the person had been “politically active...

...In order for an ideological balance to be maintained in the courts, the Congress must respect the will of the people-as expressed through their elected president-where judicial appointments are concerned...

...To last more than a few years, a constitution must be written in what Chief Justice John Marshall called ‘Lgreaot utlines” that specify only “its important objects,” outlines that must be filled in by judges...

...The conservative crusade against activist judges has been even more effective on the state level, where elective judges who voted in ways displeasing to Republicans have been denied re-election by organized electoral campaigns...

...After all, Brown v. Board of Education was one of the most “activist” decisions in our history...

...Would we have wanted it to come out differently...

...Instead, the justices relied solely on their own conception of what “state sovereignty” and “the federal structure” entail...

...With the Reagan Revolution of 1981, the anti-court forces went into high gear...

...The important thing is to maintain judicial independence...

...As Justice O’Connor admitted, this is “essentially a tautology,” because the amendment says nothing about what powers are in fact reserved...

...Nevertheless, two years ago the court’s conservatives rewrote the amendment to also exclude suits against a state by its own citizens-in the process overruling a recent precedent, and overturning a federal statute...

...What becomes increasingly clear from the court’s record is that conservative justices are not so much concerned with strict adherence to the Constitution as with promoting conservative values...

...In some cases, the conservative majority has gone so far as to openly rewrite constitutional text...

...Activism can, of course, go too far-though what is ‘koa far” is often disputable and usually depends on who wins or loses...

...By trying to win the whole game, the Republicans are gumming up the works...

...This is particularly true of our Constitution, written over 200 years ago by people whose vision was shaped by an America very different from the one in which we live today...

...Until 1989, they failed except with respect to employee layoffs...

...The only court that remained relatively free of conservative domination for much of this period was the Supreme Court, because Justice Lewis Powell-most of the time a conservative vote-not infrequently swung over to the liberal side on key issues like affirmative action...

...It is they, in fact, and not the judges they are attacking, who are betraying our constitutional heritage “in order to advance their own political views...

...And by and large, Democrats went along with the Reagan-Bush appointments (In fact, during Bush‘s final year in the White House, the Democrat-controlled Senate approved 66 judicial appointments...

...It’s OK to be an activist if you’re striking down affirmative action and gun-free school laws...

...Another example of this indifference to states’ rights is the area of criminal justice...

...Bob Barr of Georgia is but one of several Republicans to denounce the current crop of jurists for “assuming for themselves the powers and responsibilities of legislators or executives” -an offense those on the right say must not be treated lightly...

...In none of the aforementioned cases, or numerous others like them, has the conservatives’ purported zeal for judicial restraint or states’ rights prevented them from riding roughshod over stare and local legislation or court rulings that they disagreed with...

...In all of 1996, the Senate let through only 17 trial judges and no appellate judges, an unprecedentedly small number...

...But oddly enough, Republican crusaders seem to have overlooked an important point: Some of the worst “activist” offenders on the bench today are the conservative members of the Supreme Court...

...One Man's Activist . . . What Republicans really mean when they condemn judicial activism BY HERMAN SCHWARTZ JUDGES, WATCH YOUR BACKS: THE CONgressional Republicans hace officially declared war on "judicial activists," judges who go beyond interpreting the law into the realm of what GOP lawmakers consider the law...

...According to political scientist :Sheldon Goldman of the University of Massachusetts, who has been studpg the nomination process for 40 years, the Republicans are engaged in an effort “unprecedented in its scope . . . to deny the Clinton administration as many nominations as possible...

...And although the court’s liberals have joined conservatives in some of their most controversial ruliny, like overturning the Religious Freedom Restoration Act, even Clint Bolick‘s Institute for Justice has admitted that the court’s conservatives are more inclined to strike down both federal and state laws than Clinton’s two appointees, Ruth Bader Ginsburg and Stephen Breyer...

...Moreover, when the Senate reconvened this year, Republican Charles Grassley of Iowa demanded Morrow’s position on every one of 160 California initiatives in the last 10 years...

...It is generally agreed that the preNew Deal conservative judges were too aggressive, and these days a vociferous minority of our population believes that the Roe v. Wade court was as well...

...Unable to rely on any constitutional text, Rehnquist invoked vague notions of “state sovereignty...

...When these deliberately ambiguous texts come to the courts, the latter have no choice but to “make” the law...

...So why aren’t 1LEssrs...

...And upon being named to the court, FDR appointee Justice Felix Frankfurter adhered to a strict policy of judicial restraint, reflecting his belief that the court should, whenever possible, defer to the will of the people as expressed throug;h the legislature...

...For a while, President Clinton provided the Republicans with a convenient excuse for the outrageous number of vacancies by sending up very few nominations...

...They simply oppose “liberal judicial ac1:ivisml’ As one federal judge put it, “The Republicans define ‘activist’ according to their political agenda...

...Slade Gorton of Washington tried unsuccessfully to have Congress cut into the president’s nominating power by requiring the president to get advance approval for a judicial candidate’s ideology from the senators representing the circuit to which the candidate would be nominated...

...They went at it systematically, focusing on the Supreme Court and intermediate appellate levels where federal law is made...

...For example, last year Margaret Morrow, the first woman to serve as president of the California Bar Association, was unanimously approved by the Senate Judiciary Committee...

...For that, we must try to keep the judiciary as free as possible from the partisanship to which it has recently been subjected...

...And if the mainstream of the nation believes the courts have gone too far, history shows that sooner or later the offending rulings will be modified or overruled...

...The result of the conservative campaign is a massive pile-up in the federal courts...

...Take the issue of affirmative action: Since 1978, when the Bakke case involving the University of California’s decision to set aside 16 out of 100 places for minorities at the Davis School of Medicine was decided, conservatives have voted to strike down virtually every affirmative action plan to come before the court, regardless of whether the plan was adopted by state or federal legislators or officials...