Why is retired Justice Sandra O'Connor surprised that citizens are upset with the judiciary?
The former Reagan Supreme Court appointee and swing voter extraordinaire keeps popping up all over the country at judicial conferences and other public events, complaining about state judicial-election campaigns and ballot initiatives for term limits or judge removal. She's been calling such voter-supported activities a "threat to an independent judiciary." Color me incredulous. Does she not realize she is as much to blame as anyone for the overall mistrust of judges that has prompted so much recent interest in state judicial elections and federal judicial appointments?
O'Connor's constant struggle to find a middle ground in her judicial opinions -- between what the Constitution says (or in some cases, such as abortion, what it doesn't say) and what she wanted it to say -- often found her in a semantic Wonderland. Consider this classic passage from the 1992 Planned Parenthood v. Casey abortion decision in which she and Justices Souter and Kennedy jointly penned the lead opinion upholding Roe v. Wade:
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.
Of course, the correct reaction to such judicial logic is: "Huh?" And O'Connor's bewildering "undue burden" standard for abortion regulation has left federal judges grasping at straws in a vain attempt to answer the question: "How would Justice O'Connor vote on this one?" When the subjective opinion of one justice becomes more important than the Constitution, the reputation of the judiciary suffers.
It seems obvious, to me at least, that Americans have increasingly wondered if judges are required to play by any rules at all, due in no small measure to the way Justice O'Connor decided cases.
Why is Sen. Schumer upset that President Bush renominated six judges left over from September?
When Congress recesses for any length of time, it is the traditional practice of the Senate to unanimously consent to the carryover of any pending executive nominations (judges, ambassadors, etc) that have not yet received an up-or-down vote on the floor of the Senate.
Because of the continuing efforts to obstruct conservative judges, however, the Democrats have refused such unanimous consent, most recently before the August and October recesses. By Senate rules, without such unanimous consent, the nominations go back to the White House. President Bush has refused to let such passive-aggressive tactics decide the fate of six appellate court nominees: Terrence Boyle, William Haynes, Randy Smith, William Myers, Michael Wallace and Peter Keisler. Apparently Sen. Schumer thought ignoring these nominees would suffice as the Senate's constitutional duty of "advise and consent." And because the president disagrees, according to Schumer, it is a "clear slap in the face" to Democrats.
It's really more of a bluff-calling than a slap in the face. Why is Schumer so afraid to allow the constitutional process to work? I heard somewhere that the Democrats are now in control of the Senate. If these nominees are as bad as Schumer says, won't they be voted down in an up-or-down vote? Shouldn't Schumer be saying something like "Bring 'em on!" rather than "How dare you bring them back?" Or is Schumer worried some Democrats may side in a bipartisan way with Republicans (not to mention the overwhelming majority of Americans) who want conservative judges on the bench?
Why is Sen. Leahy bragging about his "accommodating manner" of handling judicial nominees?
I confess that Patrick Leahy is one of only a few senators who can actually make me laugh out loud when I read or listen to something they've said that they wish to be taken seriously. Last week he did not disappoint me. On Tuesday, Leahy issued a rambling statement on judicial nominations, much of which was a self-congratulatory pat on the back for how reasonable he and his fellow Democrats have been with President Bush's nominees, including the stint in 2001-02 when Democrats were in control of the Judiciary Committee with Leahy as chairman and Tom Daschle as Senate majority leader.
Daschle? Hmm, now remind me again why he lost his job in 2004? Something to do with judges, wasn't it?
But I digress. I was talking about Leahy. To recap, Sen. Leahy and the Democrats took control of the Senate Judiciary Committee in May 2001, when Sen. Jeffords defected from the Republican Party, effectively giving Democrats a majority in the Senate. That majority continued until January 2003, when Republicans took back the Senate. In Leahy's 19-month stint as the "accommodating" Judiciary chairman, he refused to even hold hearings on 12 appellate-court nominees, including (among names you may have heard of): Chief Justice John Roberts (then he was up for the D.C. Circuit Court of Appeals) and Terrence Boyle (who is still waiting for his up-or-down vote for a 4th Circuit spot). Leahy, in another burst of his supposed bipartisanship, held hearings for, but refused to allow a committee vote on, Priscilla Owen, Miguel Estrada and Charles Pickering during the same period. Pickering ultimately needed a temporary recess appointment from President Bush to get his job, if only for a year. Estrada gave up in disgust and took his name out of the running. Only Owen got her lifetime appointment -- but not until 2005 and only after a bitter fight.
Beginning in 2003, Leahy and the Democrats were out of power but continued their accommodating ways by instituting the unprecedented filibuster of 10 of those nominees and threatening filibusters for half a dozen others. Nine of them eventually earned confirmation after a couple years, several removed their names from consideration rather than suffer from any more Democratic good-will, and several more, even today, are still feeling the effects of Leahy's obstruction.
So I had to chuckle at Sen. Leahy's walk down memory lane. Sounds like he got lost.
(Paid for by Focus on the Family Action)
