June 28, 2001
"Judicial judgment must take deep account of the day before
yesterday in order that yesterday may not paralyze today."
- Felix Frankfurter, United States Supreme Court Justice (1939-1962)
In this brave new world of 2001, only a fool would believe
that the judicial branch of our American government, established
by Article III of the Constitution, is free from the taint
of political influence.
Nominees to the Federal bench come almost exclusively from
the ranks of those who wear out shoe leather for one of the
two dominant political parties. Nominations are part of the
political patronage system, a device used to dispense rewards
to the faithful after victory at the polls is achieved. It
is an arrangement as old as Jefferson's quill, practiced aggressively
on both sides of the aisle.
Look no further than the august heights of our Supreme Court
for proof of this. Each of the Justices has at one time spent
blood and sweat for the advancement of either the Democratic
or Republican ideological agenda. When one joins the ranks
of a party and dedicates a portion of their life to the advancement
of that party, it stands to reason that loyalty to that party
and its core ideologies are not stripped away upon the donning
of a black robe.
Political ideology, therefore, must be considered by the
Senate as a part of its advise and consent role in the process
of approving judicial nominees. It must be as much a part
of the process as the analysis of a nominees' education, rulings,
public statements, and financial background.
This nation is ruled by the Judiciary at the end of the day,
as was incontrovertibly proven on December 13, 2000. The President
may propose or veto legislation, and new laws are created
in Congress by the hour. The Judicial branch, however, is
the proving ground. One judge may, with the pounding of a
gavel, undo years of Presidential or Congressional brickwork.
Thus, or entire system lives and dies within the walls of
our courtrooms on the words and deeds of those who wear the
A judicial nominee must therefore be placed squarely under
the Senate microscope, to ensure that we the people are given
the opportunity to fully and completely know who it is that
stands to represent the ideals of American law and justice.
No questions must be spared, and no areas must be ignored
in this pursuit.
Such things can not be left to chance, a crossing of fingers,
or a hope that a judge will suddenly become "independent"
of such considerations upon their rise to the bench. Such
things have happened, of course. But it is better, far better,
that we know exactly what we are getting into. The questioning
of ideology has always been part of the process, of course.
Such mean considerations are never spoken of publicly, however.
Senators, flush with the responsibility of deciding who will
rise to that all-important branch, speak earnestly of reviewing
nominees on the merits of their rulings and education alone.
This leads to abuses of power, distortions of judicial or
financial records, defamation, hard feelings, and strife.
As Senator Charles Schumer said in a Washington Post article
published on June 26, 2001, "It's just that we don't talk
about it openly. This unwillingness to openly examine ideology
has sometimes led senators who oppose a nominee to seek out
non-ideological disqualifying factors, such as small financial
improprieties from long ago, to justify their opposition."
There are legal experts who claim that lowering the examination
of judicial nominees to rank political inquisition will cause
the American people to view the Judiciary as just another
political institution. These well-educated scholars, sadly,
are the Pollyannas of legal society. They seek to avert damage
that has already been done. They are trying to protect an
ideal that has been on life support for generations, an ideal
that was murdered outright last winter in the swamps of Florida
and in the chambers of our highest court.
Too often in history, we have been wounded in the pursuit
of a dead dream. Best we leave this one where it was slain,
and move on to the business of the people.
It is time to openly accept the facts of our political landscape.
At the end of the day, ideology is everything. Everyone knows
this. Most nominees make it through the Senate out of deference
to whatever administration currently resides in the White
House. It cannot be denied, however, that the brimstone stench
of ideological war stained the air during the nomination brawls
of Robert Bork and Ronnie White.
The idea that ideology deserves to be considered has finally
clawed its way into daylight with the sudden defection of
James Jeffords and the subsequent delivery of majority Senate
control to the Democrats. Senate Republicans, stung by the
wrenching realization that their clear path towards the unencumbered
nomination of conservative judges is now strewn with obstructions,
have begun to howl in dismay that ideological considerations
be part of the process.
Republican Senator Orrin Hatch, speaking on the subject of
ideological considerations, said in the same Post article
quoted above, "The Senate's responsibility to provide advice
and consent does not include an ideological litmus test. A
nominee's personal opinions are largely irrelevant so long
as the nominee can set those opinions aside and follow the
law fairly and impartially as a judge."
This is an interesting perspective when compared to recent
history. The 1996 Republican National Platform had this to
say about the Judiciary: "The American people have lost faith
in their courts, and for good reason. Some members of the
federal judiciary threaten the safety, the values, and the
freedom of law-abiding citizens."
One is forced to wonder whose values the Republicans were
referring to when they issued this indictment. Are values
not a matter of personal opinion, faith, and ideology? It
seems clear from this that the GOP had no problem in 1996
with the idea that the Judiciary should and could be remade
according to their own ideological view of America. Concepts
of judicial impartiality do not seem to be important here.
Consider, as well, this quote attributed to John Czwartacki,
spokesman for Republican Senator Trent Lott, published in
'The Legal Intelligencer' on February 28th, 2000: "The majority
leader was also opposed to confirming any judges for the 9th
Circuit Court of Appeals whom he felt would not return the
panel 'to the mainstream.'"
No definition of 'the mainstream' was forthcoming, but one
must assume that Mr. Lott's concept of the mainstream depends
largely upon his own conservative political ideology, and
the ideology of those to whom he is loyal. Mr. Lott was comfortable,
however, with determining what was not ideologically 'mainstream'.
Until Jeffords awoke on the left side of the bed, Mr. Lott
held considerable sway over the establishment of his own personal
definition of 'mainstream' within the judiciary. I doubt this
troubled him at the time.
Bald-faced hypocrisy is nothing new in American politics.
The simple fact is that the GOP, faced with the hard truth
that they are not in control of the judicial nomination process
anymore, are raising this hue and cry in an attempt to shame
the Democratic majority into letting them have whatever they
Lott and his compatriots fear, with good reason, that if
the American people are informed of the fealty many of these
GOP nominees hold for ultra-conservative ideologies, those
nominations will die a swift death. Frankly, Trent Lott would
not know the political mainstream if he were submerged in
it up to his toupee. A Judiciary that best represents the
true American political perspective would dwell somewhere
in the Center.
This does not serve the conservative GOP agenda, and it
is clear from his rantings that Lott has far more loyalty
to that agenda than he does to the American people as a whole.
If it is not Right, in Lott's view, it is wrong. It therefore
makes perfect sense for him to rail against the dying light
of his majority control in any way he can. Decrying the consideration
of political ideology is today's way, and never mind the hypocrisy.
Tomorrow it will be something else.
This sudden argument over the consideration of the ideology
of judicial nominees, augmented to cacophony by the outraged
howls of thwarted Republicans, serves to help us turn a political
corner. Patrick Leahy, with his power as Chairman of the Senate
Judiciary Committee, should ask the tough questions. Let us
see our nominees for who they are, and give ear to what they
believe in the inner chambers of their political hearts.
The Judicial branch is political in its foundation, made
so by those who choose who shall be nominated, and by those
who advise on and consent to that nomination. It is, and has
always been, the high ground of our endless political battlefield.
It would be nice if it were otherwise, if that all-important
branch were free of the scandalous shadow of politics. But
it is not, and we should stop fooling ourselves. Open consideration
of such things is, at the bottom, a more honest way of doing
Ask the tough questions, Chuck. The Republic will endure.