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part of the ongoing war preparations for the next Big One — the
battle over the courts — liberals have been
denouncing
President Bush for injecting politics into the process. They insist
they oppose his court nominees across the board, actual and potential,
because Bush is engaging in "ideological politics" with
the judicial selection process.
Thus, theNew
York Times recently ran an article by a Stanford history professor
plaintively pleading for an independent judiciary, asking: "(W)hat
happens to that concept when the appointments process becomes an
extension of ideological politics by judicial means?"
Apparently,
the way to stop politicizing the courts is for conservatives not
to interfere with liberals politicizing the courts. Roll over and
let liberals keep their invented "constitutional rights."
These include the constitutional right to privacy (the right to
stick a fork in a baby's head), the Flynt Amendment (prohibiting
all speech except that which is pornographic, blasphemous, or criminal
conduct), and the historic separation of church and state (requiring
that religion be stamped out of the schools, the courts, the public
square, and the churches).
The problem
with the professor's argument is that it's not "the appointments
process" that uses "judicial means" to engage in
ideological politics. Only the judiciary can use "judicial
means" to do anything. The appointments process is just the
appointments process. The way to keep politics out of the courts
is to keep politics out of the courts. A good start would be for
judges to issue rulings grounded in the Constitution rather than
the latest ACLU circular.
Here is how
some of Bill Clinton's judicial appointments avoided politicizing
the courts by closely following the language of the Constitution.
Judge Diane
Wood, the centrist judge Clinton put on the U.S. Court of Appeals
for the 7th Circuit, found that failure to provide a prisoner with
a smoke-free environment constituted cruel and unusual punishment.
Another centrist Clinton choice, Judge Robert Henry of the 10th
Circuit Court of Appeals held that it was cruel and unusual punishment
for the state to deny sex-change hormone treatment for a transsexual
prisoner.
Before Clinton
promoted him to the 9th Circuit Court of Appeals, District Court
Judge Richard Paez struck down a law against aggressive panhandling
at ATMs, outdoor cafes, and other specified public places. Los Angeles
had passed the law after a man was stabbed to death when he refused
to give a beggar 25 cents. Under the ordinance, violators were to
be given a formal warning, then a fine. Only third offenses would
rank as so much as a misdemeanor. Judge Paez ruled that the law
was an unconstitutional restriction on free speech in violation
of the Flynt Amendment.
As a sitting
federal judge, Judge Paez denounced Proposition 187, the California
initiative that barred illegal aliens from receiving state-funded
benefits, calling it "discrimination and hostility" against
the "Latino community." Paez evidently uses "Latino
community" as a synonym for "welfare queens." He
also denounced Proposition 209, the California anti-discrimination
initiative that tracks the language of the Civil Rights Act of 1964,
calling it an "anti-civil rights initiative."
Another Clinton
centrist, Judge M. Blane Michael on the 4th Circuit Court of Appeals,
has concluded that judging employees on the basis of "performance"
constitutes discrimination. That's really true.
In response
to feminist squawking at Virginia Commonwealth University — a school
with no history of gender discrimination — the university ran a
regression analysis proving that female faculty were paid less than
male faculty. To reach this result, the analysis had to exclude
merit as a factor in the analysis (e.g., number of scholarly papers
published, years teaching since earning Ph.D.). Only by excluding
merit did an "unexplainable" gap miraculously appear between
female and male faculty's salaries.
VCU responded
to the injustice by awarding an across-the-board pay raise to all
women faculty — including at the school of nursing where there were
no male faculty members who could possibly have been gypping the
women all those years.
Male professors
at VCU sued the school for gender discrimination and, not surprisingly,
won. But Clinton centrist Judge Michael dissented from the 4th Circuit's
opinion on the grounds that even IF the salaries could be justified
on the basis of performance, "the only appropriate conclusion
to be drawn is that performance factors improperly favor one sex
over the other." Merit is a male concept.
Another Clinton
centrist appointment was A. Richard Caputo, whose principal qualification
was being the father of Hillary Clinton's press secretary, Lisa
Caputo. Given the competition, he is surely no worse than the average
Clinton appointee. But after all the shrieking about how eliminating
the ABA from the process would lead to "patronage" appointments
of lesser-quality judges, it is worth noting that Caputo was noticeably
less qualified than the average appeals court nominee.
Good thing
the ABA was involved in the process. Otherwise judicial selection
might have been political.
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