Litmus test for judges from the right side

WHEN Sen. Orrin Hatch, R-Utah, spoke at the conservative Federalist Society last year, he gave rousing impetus to a radical movement aimed at blocking President Clinton's appointments to the federal judiciary.

Mr. Hatch co-chairs the board of directors for the Federalist Society, a group dedicated to pushing a conservative and libertarian viewpoint into law. Mr. Hatch shares the chairmanship with failed U.S. Supreme Court nominee, Robert Bork. Mr. Bork was nominated to the high court by then-President Reagan.


Reagan's men

Former Attorney General Edwin Meese, his former assistant attorney general William Bradford Reynolds, former Secretary of Interior Donald Hodel, and former Judge Advocate General Hugh Overholt -- all who served under Mr. Reagan -- are also members of the board.


They want to bring back the days when federal judicial appointments went mostly to conservative, white males.

The impact of Mr. Hatch's speech was powered by the fact that he is the chairman of the Senate Judiciary Committee, which holds hearings on each nomination for a federal judgeship.

After the hearings, the 18-member judiciary committee is supposed to vote to recommend a nominee's confirmation or not -- then send its recommendation to the full Senate for its vote. However, in recent years, the judiciary committee has stalled the confirmation process. It has left the president's nominees to dangle.

Meanwhile, the federal court system has been overburdened and crippled in its efforts to give citizens their day in court. Nearly 12 percent of federal judgeships are now vacant -- due to illness, deaths, and retirement.

The backlog of cases delays justice for too many ordinary citizens.

In his Nov. 15, 1996 speech, Mr. Hatch bemoaned the fact that Mr. Clinton had appointed 202 judges in his first term of office and by the end of his second term "most likely will have appointed 60 percent of all circuit judges and 50 percent of all district judges."

Mr. Hatch then sounded the clarion to his conservative brethren: "If President Clinton is permitted to use the next four years to fill our courts with liberal judicial activists, the damage to our Constitution, the rule of law, and our very right to democratic self-governance will be irreparable literally for decades to come."

The L-word


Note the phrase, "liberal judicial activists" -- "liberal" is the key, and the target. But studies show that Mr. Clinton's appointments to the courts have been moderate. Even Bruce Fein, the conservative scholar for the Heritage Foundation, concedes that we have one of the most conservative federal judiciaries in our history.

The Hatch speech was understood as a call to block or delay Mr. Clinton's appointments to the federal judiciary -- no matter what the ramifications for the nation.

The vacancies will be left for a future president to fill -- a Republican president.

Late in his speech, Mr. Hatch said, "Those nominees who are or will be judicial activists should not be nominated by the president or confirmed by the Senate and I personally will do my best to see to it that they are not."

Conservative Paul Weyrich's five-year-old Judicial Selection Monitoring Project took this statement as a pledge. And sent it to all our senators demanding they sign it. To date only 10 have signed -- all Republicans.

One of them, John Ashcroft, R-Mo., is a member of the Senate Judiciary Committee.


Mr. Hatch wrote to Thomas Jipping, the director of the Judicial Selection Monitoring Project, to say that "it is not my policy to sign pledges." He then went on to praise Mr. Jipping's support of his opposition to "judicial activism."

In its most precise usage, "judicial activism" means that a judge has used a case to legislate instead of merely interpreting the law.

While "judicial activism" is the rallying cry, raw politics is the game. And the devil take the hindmost.

Mr. Jipping's organization has targeted Los Angeles lawyer Margaret Morrow, a Clinton nominee to the U.S. District Court for the Central District of California. She has never been a judge. But her politics are wrong. And her sex is wrong. Her crimes, according to Mr. Jipping: She "has written friend-of-the-court briefs advocating affirmative action, abortion rights, parental leave and comparable worth."

The conservative political front is heating up in preparation to blow away Ms. Morrow's nomination at the full Senate's confirmation vote.

A different tune


Mr. Hatch sang a different tune back in 1989 when he wrote "The Politics of Picking Judges" for the Journal of Law and Politics. In his article, Mr. Hatch wrote: "Any constitutional theory that denies the president his appointment on grounds other than ability and integrity misconstrues history and endangers the independence, integrity, and institutional individuality of the third branch" (the judiciary).

When he wrote that, Mr. Hatch was still smarting over the Senate's failure to confirm Mr. Bork to the U.S. Supreme Court.

Mr. Bork is still smarting over his failed appointment. And now they have joined forces to deny Mr. Clinton his appointments. Mr. Hatch's loyalty to constitutional principle has evaporated under the heated political winds. Unfortunate for him, unfortunate for the people.

Charles Levendosky is editorial page editor of the Casper (Wyo.) Star-Tribune.

Pub Date: 11/04/97