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Injudicious Battles
Is there any stopping the judge madness in the Senate?


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One important lesson learned during this past election year is that the American people want a return to basic American values, and an end to vicious, Michael Moore-style politics. Certainly the last thing Americans want is yet another year of incessant, baseless, and venomous attacks.

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But if liberal special-interest groups in Washington have their way, more vicious politics is exactly what the American people will get, particularly in the likely event of a vacancy on the U.S. Supreme Court.

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The American people want judges and justices on the bench who will dutifully interpret the law–distinguished legal minds and devoted public servants who will help implement, not make, political decisions, and who know the difference between personal opinion and professional duty.

But some special-interest groups do not want that. Having failed to advance their policies democratically at the ballot box in November, these groups now hope to achieve their ends in the courtroom and to impose their views on the country by judicial fiat.

Of course, they will not say so in public. Instead, they will try to distort the records of this president’s well-qualified judicial nominees in an effort to defeat their confirmation.

One favorite tactic has been to attack the two distinguished jurists whom President Bush has frequently heralded as models of jurisprudence: Antonin Scalia and Clarence Thomas. The judicial philosophy of these two fine justices–a philosophy that respects and promotes democracy and returns decision-making to the people and to the states, rather than set national policy by judicial fiat–has even been condemned as downright hostile to civil rights.

But consider the source of these attacks.

These are the same groups who claim that your civil rights are being violated whenever a public-school teacher recites the Pledge of Allegiance, a county clerk issues a wedding license only to the union of one man and one woman, or a soldier allows a Boy Scout troop onto a military base.

These are the same groups that seek judges who will ignore the three-strikes-and-you’re-out law when sentencing convicted criminals, invalidate consensus laws like the partial-birth-abortion ban, and block school-choice programs designed to expand educational opportunities to minority communities.

Moreover, their analysis of the law is as flawed as their views on policy. Consider these examples:

Rights of the Accused: The judicial philosophy of Justices Scalia and Thomas has led to numerous decisions favoring criminal defendants, notwithstanding the contrary views of some of their colleagues. In Blakely and Apprendi, they authored or joined 5-4 majorities recognizing a robust right to jury trial under the Sixth Amendment. In Kyllo, Justice Thomas joined Justice Scalia’s 5-4 majority opinion expanding Fourth Amendment protections against government searches based on new technologies. Justice Scalia’s dissent in Maryland v. Craig, decided before Justice Thomas joined the Court, championed a broader Sixth Amendment right of criminal defendants to confront their accusers than that ultimately adopted by the Court.

Employment Discrimination: Fidelity to text and precedent has also led Justices Scalia and Thomas to favor employees in numerous employment discrimination cases. For example, they advocated a broader interpretation of the federal Age Discrimination in Employment Act favoring the employee, and dissented from the Court’s decision in favor of the employer in Cline. Both justices have authored a number of the Court’s leading opinions faithfully construing race and sex employment discrimination laws in favor of employees, including Oncale, Costa, Swierkiewicz, and Robinson v. Shell Oil.

First Amendment: Justice Thomas has been recognized by legal scholars across the political spectrum as a stalwart champion of free speech, while Justice Scalia provided the critical fifth vote in Texas v. Johnson, the landmark flag-burning case issued prior to Justice Thomas’s arrival at the Court. Justice Scalia joined Justice Thomas’s 6-3 opinion in Good News Club ensuring equal access to public-school facilities by a religious group as a matter of free speech, as they had similarly held in Rosenberger. And both justices joined the Court’s 5-4 decision upholding the ability of minority communities to enjoy educational choice, including equal access to parochial schools.

These and countless other decisions demonstrate how misleading it is to examine the work of judging through the narrow, partisan political lens advocated by these liberal special-interest groups. In fact, the job of a judge is to decide one case at a time, applying the existing law–whether a law written by Congress or a judicial precedent–to the facts, without regard to who wins or who loses. In other words, result-oriented decision-making is the opposite of what a good judge does. No good judge twists the law or the facts to assure a particular outcome, and it is wrong for anyone to suggest that it is appropriate that they should.

Judges regularly find themselves on opposite sides of an issue; court decisions are often divided. Indeed, Justices Scalia and Thomas frequently disagree.

But it’s offensive and wrong to say that one justice is hostile to civil rights while another justice is pro-civil rights, just because they happen to disagree from time to time. For example, it’s wrong to say that the cases noted above prove that Justices Scalia and Thomas are pro-civil rights, while their brethren are anti-civil rights, just because they happen to disagree in those cases.

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The American people also want a fair and reasonable process for deciding who shall serve on the Supreme Court. Under our Constitution, that means nomination by the president and confirmation by a majority of the Senate. Throughout our nation’s history, every judicial nominee who has received the support of a majority of senators has been confirmed.

President Bush’s nominees to the federal courts have enjoyed the support of a bipartisan majority of senators. Unfortunately, during this past Congress, a partisan minority of senators trampled upon two centuries of Senate tradition upholding the doctrine of majority rule. They have filibustered ten judicial nominees–for the first time in our nation’s history–in order to prevent President Bush’s nominees from receiving an up-or-down vote on the floor of the Senate.

Some Senators are now even claiming that they should have a role in selecting the next nominee to the Supreme Court. The president, of course, is entitled to consult with whomever he wants, but cooperation is a two-way street, and one can certainly understand a president’s reluctance to take advice from those who have obstructed his finest nominees.

Moreover, the Constitution is clear: The president, alone, nominates judges. The Senate has an important advice-and-consent function, but that function applies only to the confirmation, and not the nomination, of judges. Much has been made of the word “advice,” but as early Senate practice teaches, the Senate’s constitutional function is simply to “advise” whether it considers a particular appointment to be a good idea and, separately, to “consent” to that appointment regardless of the Senate’s own advice. (For example, when the Senate, for the first time, exercised its advice-and-consent function with respect to a treaty, it resolved “[t]hat the Senate do consent to the said convention, and advise the President of the United States to ratify the same.”)

When our last President, Bill Clinton, was presented with two vacancies on the Supreme Court, both of his nominees were given up-and-down votes and confirmed. Neither was filibustered by a partisan minority–despite their clear liberal leanings. Both are distinguished jurists–one, a former general counsel of the American Civil Liberties Union who had written that traditional marriage laws are unconstitutional, and the other, a former Democratic chief counsel of the Senate Judiciary Committee.

Should President Bush be presented with a vacancy on the Supreme Court during his second term in office, his nominee should be granted at least that same courtesy.

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A vacancy on the Supreme Court could occur at any time. A retirement could be announced at the end of the Court’s session in June or July. Or one could be announced in March or April, as was done in 1993 and 1994, thereby giving the president and the Senate additional time to consider a nominee. Finally, a vacancy could arise tragically due to a medical problem.

But whatever the time frame for a Supreme Court vacancy, the process for selecting a successor must reflect the best of our American judiciary, and not the worst of American politics.

U.S. Sen. John Cornyn (R., Texas) chairs the Judiciary Committee’s subcommittee on the Constitution, Civil Rights and Property Rights, and is the only former judge on the committee. He served previously as Texas attorney general, Texas supreme-court Justice, and Bexar County district judge.



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