Judicial Considerations
We've come a long way. Or have we?


In 1789, President George Washington nominated one of his first federal judicial nominees, Gunning Bedford, to the First Federal District Court of Delaware.

Gunning Bedford, one of the signers of the Constitution, was a graduate of Princeton University, where he and James Madison had shared a room. While at Princeton, Bedford studied law under John Witherspoon, then the nation’s preeminent legal scholar and theologian.

Bedford was a delegate to the Continental Congress from 1783 to 1785 and served as Delaware’s attorney general from 1784 to 1789. In 1787, Bedford was a known champion of the rights of small states, even suggesting at one point that small states might seek foreign alliances if they did not receive adequate protection in the new Constitution.

The state of Delaware at the time required that all state officials “make and subscribe the following declaration, to wit: ‘I, <insert name>, do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.’” As attorney general and state delegate, Bedford would have complied with the law.

He was confirmed to the federal bench and served quite capably until his death in 1812.

Gunning Bedford wouldn’t stand a chance in today’s judicial-nominations process. First and foremost, he professed quite publicly that he believed in God. That alone is apparently an unforgivable political sin. After all, it was Sen. Patrick Leahy (D., Vt.) as chairman of the Senate Judiciary Committee who attempted to remove any reference to God from the oath taken by those who testify.

Add to that the fact that Bedford hung around such radical elements as John Witherspoon and James Madison. Don’t believe me? Watch Sen. Chuck Schumer (D., N.Y.) start frothing at the mouth about the Federalist Society. He would have kittens on the Senate floor for sure if a nominee was a known crony of one of the original federalists.

Finally, Bedford believed in states’ rights, which would surely hammer the last nail in his confirmation coffin. According to Democratic senator Richard Durbin of Illinois, professing a belief in states’ rights is merely code for racism and bigotry.

To whom do we owe the current state of affairs? In large measure, the credit truly must go to the radical liberal special-interest groups. Armed with plenty of resources, including manpower and a great deal of free time, they have funneled their efforts at the courts.

These extremist organizations, which might not agree on anything else, have galvanized around this one issue — stopping any or all of President Bush’s judicial nominees — because the courts are the one place they can attempt to push through their radical social agendas without having to win elections.

These Democrat senators sit in committee hearings or take to the Senate floor in mock indignation, spewing talking points provided to them by special-interest groups. Or is it mere coincidence that all of the opposition press releases, websites, reports, and speeches have the same language — verbatim?

So, what are the Democrat senators and their minders saying about Bush judicial nominees?

One (Leon Holmes) is a Catholic who believes in the tenets of the Church and the sanctity of life. Guess that doesn’t sit too well with Sens. Leahy, Daschle, and Kennedy, Catholics who apparently take a more “a la carte” approach to their faith.

Another nominee (Priscilla Owen), as a judge, ruled that parents should, in fact, play a role in the decision-making process for their young minor daughter to have an abortion. Most kids today can’t take a Tylenol on school grounds without an act of Congress, but parental involvement to have a major medical procedure is somehow “out of the mainstream,” according to these senators.

Yet another nominee (Miguel Estrada) is either not Hispanic enough, or too conservative, or a shadow candidate who has no opinion. It’s hard to know what the problem is here because the Left keeps shifting arguments. One thing is certain with this nominee: if only they had more information on the gentleman, they could find out for sure that he believes in something like God or the Constitution and then continue to filibuster.

The bottom line is that, once ideological and religious litmus tests were imposed by the Left, a dangerous precedent emerged. Only if a nominee agrees philosophically with Schumer, Kennedy, Daschle, and their fellow travelers on the radical Left will he be allowed to sail through the process. Any deviation from what they label “mainstream” seems to justify the senators’ demand of a 60-vote threshold (a supermajority) for confirmation — a distortion and perversion of the Constitution.

The effects of this precedent could be devastating for the judiciary. What judge, who someday aspires to be on the federal bench, would not fret about his rulings when put through the Judiciary Committee’s looking glass? What lawyer wouldn’t think twice about what cases he takes in the age of litmus tests? What law student wouldn’t have reservations about exercising his legal mind by writing a law-review article on a potentially controversial subject?

To paraphrase George Orwell in 1984 freedom is writing 2+2=4. For Gunning Bedford, signer of the Constitution, freedom was indeed the wholehearted expression of ideas, the unabashed embrace of his faith, and honorable service to his nation. How far we’ve devolved. What was once a way to serve one’s country seems now to be a one-way ticket to filibuster.

Kay Daly, spokesperson for the Coalition for a Fair Judiciary, is a public-relations executive in Northern Virginia and the recent winner of the Ronald Reagan Award from the American Conservative Union.


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