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Edwards seeking legislation from the bench

By John Nowacki
web posted May 21, 2001

"We should be nominating judges. Whether it is a Democratic or a Republican administration, it shouldn't make any difference in nominating well-qualified judges. This body should act on the qualification of those men and women to serve on the court, not based upon the Republican or Democratic composition of the court. It is just that simple. This should be totally nonpartisan." So said Senator John Edwards (D-NC) in October of last year, when there were 34 fewer vacancies in the federal courts than there are today. And, assuming that he meant to say "confirming" instead of "nominating," he was absolutely right.

When the President -- any President -- nominates someone for a federal judgeship, that nominee's party affiliation should not be a consideration. Presidents and the Senators who must confirm the nominees should look to whether the candidate for a judgeship is fair, impartial, and of the right temperament. They should also make certain that those confirmed to the federal bench are dedicated to upholding the law, and not to legislating their partisan political agenda from the bench. A qualified judge -- the kind Senator Edwards was talking about -- is one who takes his oath of office seriously and understands that judges are to apply and interpret the law, leaving the re-writing of law to the legislature.

Unfortunately, Edwards seems to have forgotten everything he said about the need for non-partisan confirmations in the months since Election Day.

Judge Terrence Boyle listens as President Bush announces his Federal Judical appointments in the East Room of the White House on May 9
Judge Terrence Boyle listens as President Bush announces his Federal Judical appointments in the East Room of the White House on May 9

When President Bush announced 11 nominations to the U.S. Courts of Appeals recently, Edwards announced that he would hold up Terrence Boyle, the nominee from North Carolina, unless the President nominated the Senator's choice for a circuit judgeship. Why? Pure partisanship.

"Until we find some constructive process that allows for balance, then I would not support any nominee, including Judge Boyle," Edwards said. According to the Associated Press, Edwards suggested his cooperation could be gained by the re-nomination of state judge James Wynn -- a Clinton nominee whom Edwards apparently believes would "balance" Judge Boyle's elevation to the Court of Appeals.

President Bush has been very clear about his standard for judicial selection. When he presented his nominees on May 9, Bush said: "Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. To paraphrase . . . James Madison, the courts exist to exercise not the will of men, but the judgment of law. My judicial nominees will know the difference."

So . . . Bush says that his nominees will be men and women who will exercise restraint and respect the constitutional separation of powers. What is it that needs balancing here? The partisan interests that Edwards condemned on the Senate floor just seven months ago?

Of course, that's precisely what Edwards is worried about. He wants judges who have the Democrats' stamp of approval and who are perfectly willing to legislate from the bench. Just take a look at the man whom he would nominate if he were President (and whom he's trying to nominate, even though he's not).

As a judge on the North Carolina Court of Appeals, James Wynn wrote that the state supreme court should revoke a municipality's sovereign immunity from tort liability, even though that would be a clear usurpation of the legislature's role.

During a brief stint on the North Carolina Supreme Court, Wynn held that when determining the duty of care a homeowner owes to licensees and invitees on his property, the common law distinction between the two was abolished and replaced with a single standard. The Chief Justice of that very court -- who concurred in the result of the case only -- wrote that it was "unadvisable to render an opinion of that magnitude" when no party had suggested the modification and the court did not have the benefit of arguments and briefs on the issues decided by the majority. According to the Greensboro News & Record, Wynn's position actually "scrapped more than a century of existing law."

Wynn's nomination went nowhere in the last Congress because of his clear record as a judicial activist -- not because he was a Clinton nominee (the Republican Senate confirmed nearly two-thirds of Clinton's judicial nominees, allowing him to nearly match Ronald Reagan's record for judicial appointments). That record of judicial activism -- ruling according to what he thought the law should be, rather than what it actually is -- is what prevented his confirmation and what should prevent his re-nomination today.

As Senators proceed to give their advice and consent, they should remember that we need judges who meet the standard Bush set forth. If Senator Edwards can demonstrate that Boyle is someone who does and will legislate from the bench, then he is right to block that nomination. But if he can't, then he is engaging in the same behavior that he condemned in that speech last year.

According to Senator Edwards, ideological litmus tests for judges were wrong last October. Edwards should recall his own words and recognize that if he wants to remain credible at all, they should still be wrong today.

John Nowacki is deputy director of the Free Congress Foundation's Center for Law and Democracy.

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