Judges should apply law - and law alone

By Thomas L. Jipping
web posted February 12, 2001

For six years, Senate Democrats pointed accusing fingers at the Republican majority and screamed, hollered, and bellyached about how they were politicizing the judiciary. Activist judges, the Democrats said, are just those who rendered decisions the GOP doesn't like. And that, the Democrats said, is no basis for opposing judicial nominations. Judicial independence, the Democrats said, is so important that even criticizing judicial decisions is wrong, let alone trying to manipulate the judicial selection process to produce judges who will rule a particular way.

That was then. This is now. That was when Bill Clinton was nominating liberal activist judges. This is when George Bush says he will nominate restrained judges who interpret rather than make law. That was when the best place to achieve liberal policy goals was the courthouse, not the statehouse. This is when the judges likely to be appointed will say the people and their elected representatives, not judges, should run the country.

And guess what? Yup, you can already hear the tune changing. It began during the jihad against Attorney General John Ashcroft. Senators demanded to know the kind of judge he would recommend be appointed. After the 58-42 vote confirming Ashcroft, Democrat Senators said it was a "shot across the bow" to demand that so-called moderate judges be appointed. But above all, the left wants judges who will not vote to overturn Roe v. Wade, the decision legalizing abortion.

Everything else is negotiable, but they want that decision left alone. And this is not confined to Democrats. During an interview on C-SPAN about his new book, Senator Arlen Specter, Pennsylvania Republican, said he is seriously considering voting against nominees who will not reveal how they will vote on this question.

Left-wing groups screamed about the suggestion that judges could be removed for rendering activist decisions. This was an assault on judicial independence, they said. Well, so far they have been silent at the suggestion that judges should only be appointed if they agree to rule a certain way on certain issues. This is an even greater threat to judicial independence, since presumably Senators who agreed to vote for confirmation based on such promises would be open to impeaching judges who broke those promises.

This week I will be writing to organizations such as People for the American Way, the American Judicature Society, the American Bar Association, Citizens for the Constitution, and others who claim they defend judicial independence. I will ask them whether they believe that conditioning judicial appointment on commitments to vote a certain way on certain issues is legitimate. I'll report back. In the meantime, listen for the drumbeat to grow. Not long ago, it was illegitimate to demand that judges have no political agenda, that they apply the law and the law alone. Today it is practically necessary to demand that judges vote a particular way on particular issues to get a job. It's going to be a bumpy ride.

Thomas L. Jipping, J.D., is Director of the Free Congress Foundation's Judicial Selection Monitoring Project.

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