Counterpoint:

Make Judicial Appointments Fair

by James Hall, from the Left

No one can deny James' claim that the federal judiciary is infected with politics. The Supreme Court's 5-4 Bush v. Gore decision that crowned George W. Bush president proves that. (Even more shamefully rendered when it was later revealed that Justice Scalia had children and Justice Thomas had a wife, all working for the Bush campaign, and neither recused themselves from that poorly conceived decision which disenfranchised the voters of Florida.) Nonetheless, it is possible to pick candidates for the bench for whom the Constitution and the law are more important than party affiliation or philosophy. That we should at least strive for.

Times have changed the Senate's role in advise and consent. A Democratic Senate approved over 85% of Ronald Reagain's appointees to the bench in a less partisan era, but Republicans in the Clinton administration approved of only 60% of Clinton's nominations. Now Mr. Bush would like a free pass on his nominees. Well, he won't get it. The Bush v. Gore decision awoke Democrats to the increasingly politicization of the bench, and they will guard against attempts to overturn by judicial fiat what could not be gained at the ballot box.

With the country split down the middle, no one will get entirely what they want. Not George W. Bush, not Tom Daschle, and certainly not Charles Schumer. I propose that we follow the Clinton administration's plan for picking lower court judges: let conservative senators approve conservative candidates for their districts; let liberal senators approve liberal candidates for their districts, and let both sides sit down together to pick judicial moderates for any future Supreme Court seat. Such a plan has the virtue of preserving a 50-50 balance in the courts and gives no side the edge.

Of course the very fairness and reasonableness of this compromise will probably sour it with conservatives, who saw themselves briefly with a conservative president and Republican majority in the Senate picking their belligerant Borks, sententious Scalias, and their pornography-loving, phlegmatic Thomases. Sorry fellas, it was never going to happen, and is even less likely with a Senate Democratic leadership controlling hearings and votes.

If conservatives choose to stomp their feet and turn blue on picking candidates, that's fine with me, too. Better no appointees than nothing but Bush Federalists, and I can wait until the American people have had enough of conservative tantrums to give me another liberal president and Congress in 2004. Meanwhile conservatives, if you want to play judicial ball, then it's one for you and one for me--and together we decide who's worthy to sit on the Supreme Court. That will be a judge we can both live with, or forget it. And that kind of compromise picking just might restore judicial integrity and make a start ridding us of the political hacks on the bench.

Final Word:

James, FDR's attempt to pack the Court is as wrong-headed as your own idea that "advise and consent" means to rubber stamp a presidential nomination without scrutiny. No, James, the Constitution's requirement that the Senate "advise and consent" on all judiciary appointments requires that time and energy be spent on examining nominees' fitness for the job, and turning down unqualified candidates. If you seriously believe that a president has Carte Blanche on his nominations, why didn't I see you defend this principle when Jesse Helms and John Ashcroft were holding up Clinton's judicial nominees for years at a time?

And, James, you are as wrong here as you are about Microsoft. It was Judge Jackson's conduct in holding a media circus during the trial, not his actual judgement of Microsoft's culpability, that the Appeals Court cited in its opinion. The Court agreed that Microsoft's practices are clearly monopolistic. Oh yes, did you forget that Judge Bork was also a principal lawyer arguing for the breakup of Microsoft?

You can't have it both ways, James. Any real lover of the Constitution recognizes the Senate's perogatives in the selection of the judiciary and doesn't work against them. The president will propose, and the Senate will dispose of any judicial nominations according to their own rules. Voters always have the right to object to those results in the ballot box, don't they? Let the Senate do its job.

James Hall, From the Left

Point:

Judiciary Warfare

In the heat of recent judicial confirmations, the prospects that a litmus test for political ideological purity is the overriding standard, has finally been verbalized. Some may fear that this will politicize the judiciary. For those weak knee and spineless neophytes of the real politik, it is time that you face reality that the federal judge is a politician. The notion that the judiciary is above politics is lunacy. The pretense that has been fostered that lifetime appointments allow for independence is as inaccurate as saying that a jury is bound to follow the instructions of a judge. People need to deal with reality, and discard pious versions of a fairy tale.

The glee on the face of the chief advocate for political carnage is evident when he takes aim at the confirmation process. Senator Schumer's love for restricting guns does not extend to his desire to initiate a blood bath within committee. And if some fluke a wrongful nomination would come before the floor, only dogma uniformity will do. Well, let's be consistent, and bring on the hand to hand combat. It is about time to shed the disguise and admit that if you don't subscribe to the politically correct agenda, you will not get confirmed. No Bork's need apply for this job. Thomas' need to hitch to a different wagon. And any potential Scali's must work for another boss.

So why won't the Republicans fight with the skill and tenacity of a commando? What do they fear, that a real strict constructionist may actually be approved? The reading of the Constitution is obvious to any sincere person. The notion that the intent is reserved for interpretation by the bench is as cruel a tyranny of the judiciary as was the Dred Scott ruling. The Federalist Society says it best:

"de facto rule by jurists whose power is unchecked and who see fit to mold society to suit their own personal concepts of justice. Most often, this judicial activism reinforces the reigning liberal orthodoxy which has taken hold of American legal institutions."

When the only prospect is placing for consideration liberal activists, or no judge will get approved; let the court houses go dark . . . The facade that passes for federal justice is the greater crime than the charges against the most harden career felon. No one seeks to allow the guilty to go with impunity, but that is the function and the role of state courts. Federal circuits primarily settle issues of national law. So how can any sensible citizen accept the backing of radical collectivists for life? Isn't it worth a full blown civil clash to appoint jurists of sound temperament and restraint? Remember, it is not necessary to be a lawyer to be on the Top Court!

The time has come to install, non judges to the bench. Keeping a select and privileged class above the citizen is like allowing the CIA to print their own money! (Oops, forgot they did that in Iran, already) Can we be so deceived to accept that from the vast array of scholarly and common sense intellect, and real world experienced sages, that Americans can't select a better cast of judges from the ranks of the general public?

When skeptics deny that the system refuses to initiate reform, just look at the lengths that Chuck 'G-man' Hoover is willing to take to protect 'HIS' State? Guns for him, but not for the rest of us. Only homogeneous Liberal judges for him, and no justice for us. The 'Real American' must be a cynic when confronted with this injustice. The law is too important to let the 'TC', totalitarian collectivists win. A major fight needs to be fought by those who refuse to accept the party line. It is better to have massive vacancies of federal judges than to have a new generation of 'Lefty' hacks. Gentlemen: start the duel . . .

James Hall aka SARTRE

Rebuttal:

Such selective memories! Remember that your hero FDR committed treason when he attempted to increase and pack the Supreme Court, without constitutional authority? So you don't like two of the justices. Well I don't care for any interpreter of new law, on any court. But what either of us like is not the issue. The restraint of judicial activism is as unconstitutional as FDR's abuses. Equal branches of 'Federalism', does not mean that accountability should be non existent when a judge is confirmed. All you need to do is look at the rebuff of Judge Jackson for his outrageous bias against Microsoft. Not being a fan of Gate's practice, doesn't give anyone the right to issue your own 'executive orders', from the bench.

The solution is coalition alliances and a break from lock step party uniformity and discipline. But at the core of all appointments, timely voting up or down needs to be the standard. For those who accept majority rule, even in the Senate with the need for 60 votes to invoke cloture, you get the need for political deal making. Nothing is wrong in swapping consideration on a vote. That Connecticut Compromise proved that this reality is at the heart of all legislation. What is wrong, is the lock step alignment of party whips to demand concordance in their vote, under the pain of being isolated from power.

No compromise on principle is acceptable, any longer. We have had enough of that cowardly government. Fight the Liberal socialists on every nomination. If none are confirmed, target each DemoRAT for defeat and make ideological gridlock the district of every obstructionist purest. The President gets the benefit to approve his choices for judgeships. Don't forget the partisanship of the George Mitchell's. Those kind are the foes of responsible government.

James Hall - 'The Right'