By Mangu-Ward, Katherine
Insight on the News , Vol. 18, No. 36
The extremely low number of Senate confirmations for President George W. Bush's appointees for federal judgeships is the result of more than just politics as usual, says a recent policy analysis from a Washington think tank. The delays reflect a deeper judicial crisis that could threaten the continued existence of constitutional government and the rule of law, according to the report.
"We lived under a regime of law for 150 years, for the most part, before politics trumped law during the constitutional revolution of the New Deal," says Roger Pilon, author of How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees. The report was published by the libertarian Cato Institute, where Pilon is vice president for legal affairs and director of the Center for Constitutional Studies. "Today," he writes, "many think it proper that the court[s] should be setting national policy. Given that view, it is hardly surprising that judicial nominees are now subject to ideological scrutiny."
Pilon says that corruption of the U.S. Constitution is the reason why an unprecedented number of Bush nominees are not being confirmed by the Senate. The Constitution, he says, assigns to the judiciary the task of restricting the realm of politics and protecting the rule of law. As a result, when a judge hands down a decision that expands or significantly changes the meaning of a law, he has failed in his constitutional duty. Today, Pilon says, judges are doing exactly this and, through their decisions, now are active participants in policymaking, contrary to the Founders' intent.
Pilon cites the Supreme Court as the primary example of this. He points to several decisions which he says were procedurally correct but were nonetheless the result of an inappropriately politicized high court. These included Helvering v. Davis, which brought into law the power of Congress to make decisions independently about federal spending for the general welfare, and NLRB v. Jones & Laughlin Steel Corp., which gave Congress the power to regulate anything affecting interstate commerce.
Many legal experts disagree with Pilon, arguing that it is precisely the Supreme Court's role to render these kinds of legal decisions which, through precedent, become policy.
"Conservatives have done substantial damage to the civil rights and civil liberties of the Warren court, but they have not been able to decapitate them entirely," says Jamin Raskin, a professor of constitutional law at American University in Washington who is affiliated with the Presidential Appointee Initiative at the liberal-progressive Institute for Policy Studies.
Raskin believes that the Constitution permits U.S. senators to weigh political concerns about judges, and says that the Senate is a coequal with the president in the nomination and confirmation process and should be free to use whatever criteria they see fit. "Miranda v. Arizona and Roe v. Wade still stand, but conservatives are not finished with them," he says. "Thus, it is perfectly legitimate to put at the center of judicial nominees' hearings the question of the fate of the modern rights agenda that evolved post-New Deal."
Of more concern to Pilon and others who agree with him are decisions by federal district--and appellate-court judges that modify laws or implicitly make policy, which they cite as examples that the courts have, during the last century, shifted from acting neutrally to acting legislatively. The recent decision by the 9th U.S. Circuit Court of Appeals to ban the pledge of allegiance has been widely reported as judicial activism and could be classified as an instance of the kind of politicized decision Pilon deplores [see "Rulings From the Rogue Court," March 25].
As a result of these kinds of decisions, says Pilon, senators now look at nominees for the federal bench as potential quasi-legislators who can and will use their decisions essentially to rewrite laws by setting precedents that should be the province of the Supreme Court alone--a circumstance clearly beyond the Constitution's intent regarding the power of federal judges. …