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Jewish World Review Oct. 9, 2002 / 3 Mar-Cheshvan, 5763

Nat Hentoff

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Consumer Reports

Picking judges by polls? | A Sept. 29 lead editorial in the increasingly trendy New York Times unwittingly revealed the contempt held for the independence of the federal judiciary, not only by members of the Senate Judiciary Committee, but also by segments of the media.

In fervently urging the committee to reject the nomination of Michael McConnell to the 10th Circuit Court of Appeals, the editorial flatly declared that in voting for presidential nominees to the courts, the senators must be certain that the nominees' "judicial philosophies will take the country in the right direction."

According to whose definition of "the right direction?" The New York Times'? Even more astonishingly, the editorial insists that the Senate must determine "whether the nominee's views on substantive legal matters are consistent with the nation's needs."

Which needs, and at what point in our history? In 1954, when the Supreme Court decided, in Brown v. Board of Education, that segregated public schools were unconstitutional, a majority of Americans did not consider integrated public schools a national need. Many were furious.

How would The New York Times measure the "nation's needs?" By polls? If so, which pollster? This method for choosing judges is very similar to that of the Senate Judiciary Committee's grand inquisitor, the Democratic senior senator from New York, Charles Schumer. He, as he said earlier this year, dismisses certain nominees as being "way out of the mainstream." Which polls does Schumer use? Or does he have a divining rod?

New York University's Brennan Center for Justice has issued a report titled "Why Litmus Tests Threaten the Integrity of Our Courts." As far as it can be categorized, the Brennan Center is a liberal institution. Yet, it states unequivocally that "senators seek to advance their constitutional authority by making ideological orthodoxy on controversial issues a prerequisite for judicial confirmation."

That is exactly what Schumer is doing. This is a strategy The New York Times editorially applauds. When Republicans are the majority in the Judiciary Committee, they, too, put aside judicial independence and look for prospective judges who will vote on the bench just as those senators would.

The Brennan Center is by no means pro-life, but in citing that the most common litmus test for the Senate Judiciary Committee is the nominee's position on Roe v. Wade, the Brennan Center points out that the pressure on the nominees is to be "proponents of ideology" rather than "impartial adjudicators of disputes."

And, a Sept. 13 Washington Post editorial on the rejection of Priscilla Owen to the Fifth Circuit Court of Appeals noted that these ideological litmus tests send a "message to the public that the confirmation process is not a principled exercise but an expression of political power. Both messages are corrosive to the ideals that must animate a first-rate judicial branch."

Also consider that, although Miguel Estrada has, after waiting 16 months, had a hearing before the Judiciary Committee on his nomination to the District of Columbia Court of Appeals, the imperious Schumer says there will not be a vote until the committee gets all of Estrada's memoranda while he was a staff attorney in the Office of the Solicitor General. The Democratic senators want to see his recommendations on which cases the Solicitor General should appeal and the briefs it should submit to the Supreme Court.

Walter Dellinger, a Bill Clinton solicitor general and decidedly not a conservative, says, "It would be very destructive of all the purposes served by the attorney client-privilege to have attorneys in the solicitor general's office looking over their shoulders when they write memos."

Moreover, at Estrada's hearing, the Democrats in charge of the committee actually accepted damaging reports of the nominee's views from an anonymous source. The source was not cross-examined, and Miguel Estrada could not confront his accuser. In Federalist Paper No. 77, Alexander Hamilton warned against presidential nominations being decided by "a conclave, in which cabal and intrigue will have their full scope."

Both parties have distorted the judicial confirmation process by turning the "advise and consent" provision of the Constitution into the equivalent of negative campaign TV ads. Meanwhile, will Senate Judiciary Committee Chairman Pat Leahy, D-Vt., permit a vote on Miguel Estrada's nomination before the end of this year now that a Democratic senator may vote to confirm him?

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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