Judges as Hired Hands

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Judges as Hired Hands

By Eugene Robinson

Tuesday, May 17, 2005; Page A21

There are confirmation battles and then there are confirmation battles.

If the president wants Yosemite Sam, I mean John R. Bolton, as ambassador to the United Nations, he can have him. He's not the guy I'd pick, and apparently not even the guy most Republican senators would pick. It's far too easy to picture him running through the halls of the United Nations like his animated doppelganger, a six-shooter blazing in each hand, calling the Chinese ambassador a "varmint" or threatening to blow France "to smithereens." But he'll be there to implement George W. Bush's foreign policy, not make policy of his own.

Yes, it's perverse to pick a U.N. ambassador who doesn't believe in international law; and, yes, he could turn out to be one of the most undiplomatic U.S. diplomats in recent history. Senate Democrats should feel free to make whatever political hay they can, but it would be both counterproductive and wrong to filibuster Bolton. At most, maybe attach some kind of rider forcing him to shave his mustache.

The judicial nominations, on the other hand, are a different story. In this fight, Democrats and level-headed Republicans shouldn't dream of backing down.

The president has the right to impose his view of the world on foreign policy -- that's what we pay him for, alas -- but not on the federal judiciary, an independent and equal branch of government. He shouldn't be allowed to pack the courts to advance the far right's political agenda. If the vaunted comity of the U.S. Senate has to be a consequence, that's too bad. The principle is that important.

Make no mistake: It's the very independence of the judiciary that's at issue here. What so riles the so-called "movement" conservatives who hold sway in Congress is that federal judges -- many of them Republican appointees! -- insist on making decisions, based on their reading of the law, that these conservatives don't like. Even when these rulings are squarely grounded on legal precedent, critics call them "judicial activism."

Yes, the irony here is pretty thick. I fully realize that I'm a proud product of judicial activism myself, since, if not for Brown v. Board of Education, I surely wouldn't be where I am. And amid all the paeans to the filibuster as a noble instrument of democracy since time immemorial, I seem to recall that it was a favorite tactic of segregationists in their crusade to deny me and millions of other African Americans basic civil and human rights.

But now it's the far right that's trying to use judicial activism, this time to turn back the clock. And the obstructionists who threaten to talk the Senate to a standstill are defending the laws and legal precedents that have made this a more inclusive, more humane and ultimately more honorable nation.

You can count on your fingers the judicial nominees whom Senate Democrats have blocked. Surely, say conservatives, all seven of the nominees at issue can't be beyond the pale. But, yes, actually, they can be.

Look at the two women whose names are being pushed forward by the Republican leadership as triggers for the so-called "nuclear option" ending the filibuster. Justice Janice Rogers Brown of the California Supreme Court, whom Bush wants to appoint to the U.S. Court of Appeals for the D.C. Circuit, has argued that it is legal for prosecutors to peremptorily exclude black women from juries (Brown is a black woman herself, but I guess that didn't matter), that racial slurs directed at Hispanics at a workplace were permitted under the right to free speech and that age discrimination essentially doesn't exist -- all radical departures from established precedent.

Texas Supreme Court Justice Priscilla Owen, whom Bush has nominated to the Court of Appeals for the 5th Circuit, is just as willing to legislate from the bench. Attorney General Alberto Gonzales served with her on the Texas court and wrote in one abortion case regarding parental notification that to side with Owen's view -- she basically wanted to ignore the clear intent of the Texas Legislature -- would be an "unconscionable act of judicial activism."

Other presidents have tried to pack the courts, notably Franklin Roosevelt. He failed, mostly due to principled opposition from members of his own party. The battle now being waged isn't about whether the Senate retains its clubby atmosphere. It's about the independence of the federal bench -- and the fact is, Mr. President, federal judges aren't your hired hands the way that John Bolton is. They work for me, too. They work for all of us.


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