Obstructionist politics, courts making laws = A Specter on the Horizon

[Brother John]

One of the things that I think spoils the possible good effects of our government is when people overstep their bounds: either to obstruct an appointment or when judges create laws from the bench..
Here's an interesting article I just read concerning this. I think it's worth a look. I'll cut and paste it here: (Your Brother, John)

An ominous Specter
Thomas Sowell

President Bush had barely finished celebrating his election victory when Senator Arlen Specter of Pennsylvania fired a shot across his bow, warning the President not to send judicial nominees before the Senate Judiciary Committee to be confirmed if they were the kinds of judges who might restrict the right to an abortion.

More is involved here than just one headstrong Senator with his own policy litmus test.

After more than half a century of escalating judicial activism -- judges imposing their own beliefs instead of applying the law -- our country is at a crossroads. There is an opportunity -- one that may not come again in this generation -- to make judicial appointments that will restore the rule of law.

The issue is not whether judges will impose liberal policies or conservative policies. The larger issue is whether they will destroy the voting public's control over their own destiny. Too many generations of Americans have fought and died to preserve the right of democratic self-governance to let judges continue to erode that right and become judicial dictators.

Expressions of outrage from many quarters have caused such an uproar over Senator Specter's statements that some have questioned whether he should become chairman of the Senate Judiciary Committee, as he would by seniority in January. These outcries have led the Senator to backpedal from his statements, no doubt to try to save his prospects of becoming committee chairman.

The real question is not what Senator Specter says now but what he would do as chairman of this key committee that judicial nominees pass before during the confirmation process. That committee has become a place for character assassination against judicial nominees who believe in adhering to the written law.

The key turning point was the nomination of Judge Robert Bork to the Supreme Court in 1987 and the massive smear campaign against him. No nominee to the Supreme Court was ever more qualified than Judge Bork but Senator Specter voted against him.

At one crucial point, Senator Pat Leahy took a cheap shot at Judge Bork by saying that he had earned large consulting fees in some years, when he was a law professor, as if that were something dishonorable. What was not revealed to the public was that those were years in which Professor Bork's wife was fatally ill and he needed that money to do all that he could for her.

Judge Bork was obviously deeply distressed by having that painful period in his personal life dragged into the political arena and his actions in those years twisted and distorted beyond recognition. When Judge Bork rested his head in his hands and covered his eyes, Judiciary Committee chairman Joseph Biden -- to his credit -- called a recess.

But, when it was proposed to end the hearings for the day, Senator Arlen Specter refused to agree. He wasn't prepared to wait to get his shots in against Judge Bork. Senator Specter's agenda was more important to him than common decency.

As the hearings went on, it became clear that Senator Specter's agenda was also more important to him than the Constitution's separation of powers, for the Senator was clearly judging Judge Bork not on his high qualifications but on whether or not he was likely to uphold policies that Senator Specter liked.

He demanded to know "where's the predictability in Judge Bork." He asked: "Where's the assurances for this committee and the Senate of where you'll be?"

Judges in general, and Justices of the Supreme court in particular, are supposed to be impartial and independent in judging the specific merits of whatever cases arise -- not predictable. What does the separation of powers mean if one branch of government can prescribe in advance what members of another branch of government must do on specific issues?

Then and now, Senator Specter has been one of those to whom what matters is not a judicial nominee's qualifications but how they are likely to vote on abortion, anti-trust laws, or whatever.

Senator Specter is also one of those people who is often wrong but never in doubt. He has mangled the meaning of such basic concepts as "judicial activism" and "original intent." It would be a tragedy for him to become chairman of the Senate Judiciary Committee, where he could mangle nominees and in the process mangle the Constitution of the United States.

 

[Brother John]

BTW: that's from
TownHall.com

Your Brother
John

 

[Brother John]

Here's an article that goes along with the previous one. It is from "The Opinion Journal", the editorial section of the Wall Street Journal.
Your Brother
John
________________________________________________________


Supreme Court Strategy
President Bush should give voters what they want: conservative Justices.

Tuesday, November 9, 2004 12:01 a.m. EST

The first post-election political skirmish is taking place over the Supreme Court, with President Bush getting lectures that his re-election victory means nothing when it comes to judges. Funny, that isn't what his opponents told us before the election.

Then they warned that the "future of the Supreme Court" for a generation was at stake, that if Mr. Bush won he'd have license to name more Antonin Scalias and Clarence Thomases to the federal bench. John Kerry said this explicitly. GOP Senate candidate John Thune, in South Dakota, and those in every race across the South made judges a central campaign issue. So now that they've won, why is Mr. Bush the one who is supposed to appoint different nominees than he named in the first term?

We'd say the President has an obligation, all right, but it's to the voters who elected him. His supporters sent a clear signal about the kind of judges they want nominated and confirmed. The Democrats who filibustered appellate court nominees for the first time in history are the folks who need to rethink their strategy.

To set the proper tone, Mr. Bush could begin his new term by re-nominating every candidate who was filibustered and is willing to go through the process again. All 10 nominees were highly qualified and had enough Democratic support to be confirmed if they hadn't been blocked by a liberal minority from receiving a full Senate vote. They include three women, an Hispanic, an African-American and an Arab-American. (See the nearby list.)

The Filibuster 10
Bush appeals-court nominees who have been blocked from a floor vote, and the number of Democrats who support them.

Miguel Estrada D.C. Circuit 4
Priscilla Owen Fifth Circuit 2
William Pryor* 11th Circuit 2
Charles Pickering* Fifth Circuit 3**
Carolyn Kuhl Ninth Circuit 2
Janice Rogers Brown D.C. Circuit 2
William Myers Ninth Circuit 2
Henry Saad Sixth Circuit 1
Richard Griffin Sixth Circuit 3
David McKeague Sixth Circuit 3

* Currently seated as recess appointment
** Includes Sen. Jim Jeffords (I., Vt.)

As for the Supreme Court, one or more vacancies seem highly likely in a second Bush term--or even earlier if Chief Justice William Rehnquist, who is 80 and seriously ill, retires before Inauguration Day. The nine current Justices have served together for 10 years, a modern-day record. Sandra Day O'Connor and Ruth Bader Ginsburg have had health problems. John Paul Stevens is 84.

In thinking about possible nominees, it helps first to understand the nature of the current court. Far from being conservative in the judicial sense of that word, today's court is controlled by the swing votes of two justices--Mrs. O'Connor and Anthony Kennedy--who lean left on such crucial issues as racial preferences, church-state relations, property rights, abortion and gay marriage. Especially if the Chief leaves, the court will need another conservative merely to maintain its current balance. That includes its mini-revival of federalism in the Lopez line of cases.





We assume that Mr. Bush is listening to the warnings from key Democrats, who are already saying that a fight is inevitable no matter what. If that's true, and we believe it is, then Mr. Bush might as well nominate judges worth the battle. Selecting another blank slate like David Souter won't do him any good, because his supporters will object while the liberal opposition will still "Bork" whomever he sends up. Though sometimes said to be a "moderate"--no one really knows--White House General Counsel Alberto Gonzales will be pummeled because he signed off on the famous "torture memos."
So Mr. Bush might as well nominate the judicial likes of Ted Olson, Miguel Estrada, Janice Brown, Sam Alito, Edith Jones, Emilio Garza, Michael Luttig and J. Harvie Wilkinson, among others, and fight it out. They are all distinguished and in the judicial mainstream. If Democrats defeat one nominee, send up another, and another after that. If Mr. Rehnquist retires early, we'd recommend a recess appointment to forestall an immediate fight and give the new Justice time to establish himself. There have been 12 recess appointments in Supreme Court history. The most modern examples--Earl Warren, William Brennan, Potter Stewart--were all confirmed by the Senate.

This is the political context in which the weekend flap over Arlen Specter fits. The liberal Pennsylvania Republican is in line to become Judiciary Committee chairman, or at least he was until he hinted that he'd block conservative nominees. He later backtracked, but not before igniting a stop-Specter movement among conservative interest groups.

A Judiciary chairman's job is not to pretend that he's the second President but to facilitate a hearing in committee and a vote on the floor. If Mr. Specter wants to vote against a nominee, so be it. But in his institutional role he owes it to his party, and to the President who saved him from political oblivion in the Pennsylvania primary this year, to guarantee every nominee an expeditious floor vote. If Mr. Specter can't make that promise to his colleagues when they organize the new Senate, he doesn't deserve the job.

In the campaign that just ended, liberals warned time and again that the future of the Supreme Court was at stake in this election. They were right, as we assume Mr. Bush will soon demonstrate.

 

[michaeledward]

To set the proper tone, Mr. Bush could begin his new term by re-nominating every candidate who was filibustered and is willing to go through the process again. All 10 nominees were highly qualified and had enough Democratic support to be confirmed if they hadn't been blocked by a liberal minority from receiving a full Senate vote. They include three women, an Hispanic, an African-American and an Arab-American. (See the nearby list.)

The Filibuster 10
Bush appeals-court nominees who have been blocked from a floor vote, and the number of Democrats who support them.

Miguel Estrada D.C. Circuit 4
Priscilla Owen Fifth Circuit 2
William Pryor* 11th Circuit 2
Charles Pickering* Fifth Circuit 3**
Carolyn Kuhl Ninth Circuit 2
Janice Rogers Brown D.C. Circuit 2
William Myers Ninth Circuit 2
Henry Saad Sixth Circuit 1
Richard Griffin Sixth Circuit 3
David McKeague Sixth Circuit 3

* Currently seated as recess appointment
** Includes Sen. Jim Jeffords (I., Vt.)

Here is another odd statistic ... from an article dated 2/23/04
http://www.americanprogress.org/site/pp.asp?c=biJRJ8OVF&b=34169

There is no obstructionism – 171 out of 177 of President Bush’s nominees have been confirmed, a nearly 97 percent confirmation rate. The Bush administration's cries about "obstructionist" Senate Democrats is a ruse to distract the American public as it stacks the courts with conservative ideologues who threaten our hard fought civil rights and liberties. In contrast to President Bush’s near perfect confirmation record over the past three years, conservatives in Congress blocked 20 percent of President Clinton's judicial nominees during the last six years of the previous administration
​

Odd how the world turns, isn't it.

 

[Brother John]

Sure is Odd!!!
I don't approve of these kinds of political ranglings, no matter who it's from!
Maybe this kinda thing will help me shape my votes next time around.

Your Brother
John

 

[RandomPhantom700]

Those type of political ranglings are what's supposed to happen. It's called checks-and-balances; the President nominates who he wants as judges, Congressmen who oppose do so. I really don't understand what's wrong with the Congressmen basically doing their job.

 

[rmcrobertson]

Thomas Sowell. Ah yes, an absolutely-unbiased, impartial source. The best available. Providing, of course, one can't reach Himmler.

Whenever the Right doesn't get enough of its way, the complaint is: Activist Judges!! Obstructionist Liberals!!!

We have a political system in place, in which different branches of government, and different political parties, ride herd on each other. What a pity.

One happened to be teaching a class last night in which
"Brown v. Board of Education," was the principal topic. The "activist Chief Justice," Earl Warren (actually, a very conservative Republican from California who'd gotten on the Court for his union-busting and anti-labor decisions, but why let reality stand in the Right's way?) helped write an opinion that was right, brilliant, and moving.

Among other things, the opinion spoke about the evolution of the Constitution, the need to consider the intent of the writers of the 14th Amendment, the historical changes of this country and its people.

Thurgood Marshall argued that case for the plaintiffs. Subsequently, he was put on the Court--and did it honor throughout his service. Subsequently, Republicans forced Clarence Thomas on to the Court in his place--and regardless of whether or not Anita Hill knew what she was talking about, comparing the two men's records ought to leave anybody Republican deeply ashamed of themselves.

Yesterday, a DC judge, James Robertson (no relation, though one wishes that Judge Robertson were) issue a writ that stayed the Bush government's bizarre warping of the Constitution to hold prisoners incommunicado, without rights, without the benefits of the law, without the slightest ability to confront their accusers or even hear the charges against them. Ay yes, judicial activism--the SOB stood up for the Constitution.

And just incidentally, one loves the warped notion that it's them darned lib'rals fault we can't get no good judges on the Court ("sometimes said to be a "moderate"--no one really knows--White House General Counsel Alberto Gonzales will be pummeled because he signed off on the famous "torture memos"). Why, hailfire, them liberals think torture is actually un-Constitutional!!! They actually have the nerve to think that lawyers and public officials have a responsibility to, "preserve, protect and defend the Constitution of the United States!!!"

The Bush government is radically rewriting our laws and our Constitution to suit corporations and right-wing lunatics. Any real conservative should at least note that this is a problem.