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Third in a series
The Left's Book on Judicial Warfare: Dismay-Demand-Distort-Defame-Delay 7/25/2005
By Jan LaRue, Chief Counsel A guide to understanding the tactics of the Left. The Left has a history of distortion-of both words and a nominee's record-so you can't assume that they mean what you mean or what they say is the truth.
Distorting Words:
1. What is a judicial activist?
The left has co-opted another term, "judicial activist." What do we mean? What do they mean?
A judicial activist is a judge who acts as if the Constitution says, "We the Judges of the United States do hereby ordain and establish this living Constitution for the United States of America, which means whatever we judges decide it means."
The late Sen. Sam Ervin (D-North Carolina), agreed: "A judicial activist is a judge who interprets the Constitution to mean what it would have said if he instead of the Founding Fathers had written it."1
In Judge Robert H. Bork's words:
[A]n activist is a person who reaches results that have no plausible relationship to the Constitution. … You may be overturning a lot of statutes or very few. But the question is have you made an argument that shows that what you are doing comes out of the Constitution. If you don't make that argument, if you don't make that showing, you are an activist.2
When the left uses the term, they're referring to a judge who they think will overrule one of their pet decisions by an activist court, such as Roe v. Wade.
2. What is an originalist, textualist or strict-constructionist?
While some make distinctions among these terms, they are commonly used to refer to a judge who believes he or she should adhere to the words of the Constitution and the intent of the Founders who wrote it when deciding a case. It's someone who doesn't believe in the theory of a living Constitution. Judges swear an oath to uphold the Constitution, which means the written Constitution or else the oath is meaningless.
3. What is the living Constitution?
It means that the Constitution "evolves" to meet the needs of modern society and the times in which we live. It provides judges with "justification" for going beyond the text, logic and structure of the Constitution to decide a case and find new "constitutional rights."
A dissenting opinion authored by then Supreme Court Justice Louis Powell and joined by Justices William Brennan, Thurgood Marshall and John Paul Stevens, in the case of Rummell v. Estelle, opens with these words: "We are construing a living Constitution."
All lower courts treat decisions by the U.S. Supreme Court as authoritative as the text of the Constitution. The practical effect is the same as if the Constitution were amended. However, Article V of the Constitution provides the only legitimate means for the Constitution to "evolve": "We the People" "grow" the Constitution by amending it. Ratifying an amendment requires two-thirds of both houses of Congress and three-fourths of the states.
4. What is stare decisis, or precedent?
It is Latin for "to stand by things that have been settled." It's the doctrine under which courts adhere to prior decisions on questions of law in order to insure certainty, consistency and stability in the administration of justice. Departure from precedent is supposed to be limited to compelling reasons (as to prevent the perpetuation of injustice).
Liberals think that stare decisis is as important as the text of the Constitution. When they condemn someone as a "judicial activist," they are referring to a person they believe will not blindly adhere to stare decisis and instead will overrule one of their favored decisions, such as Roe v. Wade.
Stare decisis, however, isn't meant to be inflexible. The Court overrules prior decisions it deems to be "wrongly decided":
Fortunately, there is no absolute rule against overruling prior decisions. Brown itself stands as a testament to the fact that we have a living Constitution. And where it becomes clear that a wrongly decided case does damage to the coherence of the law, overruling is proper. But I repeat that the general rule of adherence to prior decisions is a proper one. This is true both for statutory and constitutional cases.3
Justice O'Connor, joined by Justice Stephen Breyer, argued in her dissenting opinion in Boerne v. Flores that stare decisis is not a hard and fast rule:
[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.4
In 2003, the Supreme Court overruled a 16-year-old precedent in Lawrence v. Texas (declaring sodomy a constitutional right). This term, it overruled another 16-year-old precedent in Roper v. Simmons (declaring the juvenile death penalty violates the Eighth Amendment).
5. What does it mean for the Senate to give "advice and consent"?
Article II, Section 2, of the Constitution states: "He [the President] shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court."
The Senate gives its "advice and consent" by voting up or down on the President's nominees. The Senate does not fulfill its constitutional duty if it refuses to do so and instead engages in a filibuster in order to prevent the majority from voting on the nominee.
The Senate has no constitutional right to co-nominate, as some are once again demanding.
In Justice Anthony Kennedy's concurring opinion in Public Citizen v. United States Department of Justice (1989), which was joined by Chief Justice William Rehnquist and Justice Sandra Day O'Connor, Kennedy discussed the Nominations Clause. He wrote:
By its terms, the Clause divides the appointment power into two separate spheres: the President's power to "nominate," and the Senate's power to give or withhold its "Advice and Consent." No role whatsoever is given either to the Senate or to Congress as a whole in the process of choosing the person who will be nominated for appointment. As Hamilton emphasized:
In the act of nomination, [the President's] judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment." The Federalist No. 76, 456-457.
But might not his [the President's] nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
6. What is a filibuster?
A filibuster is a procedural device under a Senate rule. It allows a minority in the Senate to block the will of the majority that wants to vote on an issue. The filibuster is not mentioned in the Constitution. Until 2003, it was used only on proposed legislation, not nominations. The first filibusters in the 1830s sparked a continuous effort at filibuster reform. In 1917, the Senate passed Rule 22, which required two-thirds of senators present and voting to invoke cloture on a "pending measure." The debate over rules changes over the years included no mention of nomination filibusters. In 1975, the threshold was reduced to today's level of three-fifths of senators chosen and sworn.
The recent "filibusters" used against nominees are not true filibusters, which require a senator to remain on the Senate floor and continue talking.
Some claim that Abe Fortas was filibustered when President Nixon nominated him in 1968 to be elevated to Chief Justice of the Supreme Court from his position as justice. Former Sen. Robert Griffin (R-Michigan), the leader of the bipartisan opposition to Abe Fortas, said:
[T]hus far, there have been only four days of Senate debate on this very important, historic issue. ... [A] filibuster, by any ordinary definition, is not now in progress. An examination of the Congressional Record ... clearly reveals that the will of the majority was not frustrated. ... On the basis of the Record, then, it is ridiculous to say that the will of a majority in the Senate has been frustrated.
7. What is cloture?
When cloture is "invoked" in the U.S. Senate, it means to call for a vote by cutting off debate of an issue. It used to take 67 votes to invoke cloture. The Senate rule was changed to require 60 votes in 1975. By engaging in a filibuster to keep the majority from voting on a nominee, the minority makes it necessary for the nominee to have a 60 vote super-majority vote for confirmation, rather than 51 votes. A simple majority has been the rule since the founding of the nation, which is all that the Constitution requires. A vote against cloture is a vote to continue debate and prevent an up-or-down vote.
The U.S. Supreme Court has unanimously held that, unless the Constitution expressly provides for a supermajority vote, the constitutional rule is majority vote. United States v. Ballin (1892).
8. What is meant by "judicial temperament"?
Judicial temperament is a legitimate question when considering someone's suitability as a judge. A judge should be patient, dignified and courteous, and perform his or her judicial duties without bias or prejudice.
The left attacked two very gracious women nominees to the circuit courts of appeal, Priscilla Owen and Janice Rogers Brown, as lacking judicial temperament. Both responded with great grace, patience and dignity.
If legislative temperament were a criterion for becoming a member of the Senate, there would be many vacancies.
9. What does "maintaining the balance of the Court" mean?
It's a smokescreen by the left that has nothing to do with the Constitution. Practically speaking, for the left it means never having less than a 6-3 majority on the Court in support of Roe v. Wade, for example.
The only true balance that should matter is whether the written Constitution weighs in the balance when the Court renders opinions.
10. What is a "mainstream" nominee?
"Mainstream" is a hazy word that's meant to appeal to how most people feel about themselves. The left has attacked and filibustered several of the President's nominees to the circuit courts of appeal, calling them "out of the mainstream." They vilified these nominees as extreme and then confirmed several, including those who had suffered their worst attacks.
For the left, any nominee who is known as an originalist, textualist or strict-constructionist is "out of the mainstream." "Mainstream," according to the left, is someone committed to upholding Roe v. Wade. It's another word for "moderate." These words are used to appeal to most people who consider themselves "moderate" or "within the mainstream," which is thought of as the widely accepted group.
The left considers Supreme Court Justice Ruth Bader Ginsberg within the mainstream. Prior to her appointment to the Supreme Court, she served as general counsel of the ACLU- a liberal organization that has championed the abolition of traditional marriage laws and attacked the Pledge of Allegiance. She had previously written that traditional marriage laws are unconstitutional; that the Constitution guarantees a right to prostitution; that the Boy Scouts, Girl Scouts, Mother's Day and Father's Day are all discriminatory institutions; that courts should force taxpayers to pay for abortions, against their will; and that the age of consent for sexual activity should be lowered to age 12.
This is not the American mainstream. This is the left bank.
Distorting the Record:
The left repeatedly distorted Alberto Gonzales' comments in his concurring opinion when he and Priscilla Owen both served on the Texas Supreme Court. The left claimed that Gonzales called Owen a "judicial activist."
Gonzales testified under oath at his confirmation hearing as Attorney General that his comment was not referring to Judge Owen. He reiterated the point because the left continued to ignore his explanation and repeat their distortion:
There's a lot of misinformation about this. It's rather difficult to explain in a short sound byte. And, therefore, people choose to ignore the explanation - or choose to ignore the fact that I fully support Judge Owen. I would not have recommended her to the president if I didn't fully support her. ... I was referring to my own interpretation of the statute. I was not referring to the writings or the positions of other judges on the court who wrote in dissent in that particular case. I have made this position quite clear, under oath, in connection with my confirmation hearings.5
Among the many vicious distortions of her record while on the California Supreme Court, the left said Janice Rogers Brown was hostile to low-income housing in San Francisco. However, she truly said that although San Francisco has a problem with housing prices, the U.S. Constitution and the California Constitution expressly say the government cannot take private property without paying just compensation, regardless of how beneficial are its purposes. None other than Sandra Day O'Connor, darling of "moderates" and the left, validated Brown's view of the Takings Clause in O'Connor's rigorous dissent in Kelo v. City of New London.
Hardly any distortion of a record could have been more vicious than what Senate Democrats did to Judge Charles Pickering on his nomination to the 5th Circuit. Eight Democratic senators on the Judiciary Committee proudly announced they would vote against him because of his "civil rights" record.
However, Charles Evers, a leading African-American civil rights leader, testified in support of Judge Pickering. He said:
When it wasn't popular for whites in Mississippi to stand up for fairness to Blacks, Judge Pickering did. He went after the Ku Klux Klan in 1967, which was unheard of then. He did his best to get them put in jail. If he was a racist, if he's the kind of person all the liberals talk about, then why would he do that?
And why should anyone pay attention when the left continues to distort words and the records of honorable people for partisan political gain?
Click here for the first part of this series.
Click here for the second part of this series.
End Notes
- Douglas W. Kmiec, "Judges: The Law is the Law," Los Angeles Times, June 26, 2005: http://www.latimes.com/news/opinion/commentary/la-op-bushdefense26jun26,0,3834836.story?coll=la-news
- Fox News, "Hannity & Colmes," July 6, 2005.
- Louis F. Powell Jr., "Stare Decisis and Judicial Restraint," Supreme Court Historical Society: http://www.supremecourthistory.org/04_library/subs_volumes/04_c09_g.html.
- Adarand Constructors, Inc. v. Pena, 515 U.S. 548 200, 231, (1995).
- Alberto Gonzales, remarks at National Press Club, Washington, D.C., May 20, 2005.
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