Disorder In The Court:
Activist Judges Threaten Justice

On October 5, 1999, the U.S. Senate voted 45-54 to reject the nomination of Ronnie White to the U.S. District Court in Missouri; this was the first time the Senate had defeated a Clinton -judicial nominee after 320 straight -confirmations.

Democrats accused Republicans of racism for rejecting a black nominee, while Republicans (including many who had not even known the nominee’s race) said his record on issues, including criminal justice, did not justify a lifetime appointment to the federal bench. For instance, as a justice on the Missouri Supreme Court, Ronnie White voted against the death penalty three times more often than his colleagues in the Show Me State.

When The Weak Becomes Strong

Judicial selection was not intended to be such a high-stakes game. One of Alexander Hamilton’s arguments for the new Consti-tution in the 1700s was that the judiciary would be the “weakest” branch of government. By 1996, however, presidential -candidate Bob Dole said in a speech that -federal judges are a president’s “most profound legacy.”

In two centuries, the weakest branch has become a most profound legacy because judges have taken from the people control of the most significant issues that affect our -culture, communities and families.

Most Americans, however, are not alarmed by this loss of liberty because they do not understand the Constitution or the American system of government. The National Consti-tution Center recently found that 41 percent of Americans do not know the number of branches in the federal government, and one-quarter cannot identify a single right guaranteed by the First Amendment. While only 35 percent of teenagers know the first three words of the Constitution, 59 percent can name the Three Stooges.

This ignorance shields liberal activist judges from scrutiny and criticism even as their decisions have devastating consequences. One such appointee, U.S. District Judge Norma Shapiro ruled that Philadel-phia’s jails were too full and started releasing more than 600 convicts per week back onto the streets. Dozens of them killed, and hundreds raped and assaulted all over again.

And federal judges appointed by President Clinton have blocked teen curfews and prohibited judges from requiring drunks to attend Alcoholics Anonymous. And Rosemary Barkett, one of Clinton’s appointees for appeals court, has compared American police officers to Stalin’s thugs and has written that youth crime is caused by failure of the social welfare system.

Clinton judges have taken away the people’s right to decide other important cultural and political issues too, striking down state bans on partial birth abortion, and voiding requirements that parents be notified before their young children obtain abortions.

Clinton judges have struck down term limits even for state legislators and eliminated a federal law prohibiting pornography sales on military bases. Clinton judges have ruled that city or county seals cannot contain crosses in their artwork, that school boards cannot open meetings with prayer, and that students may not offer a graduation invocation even when their classmates vote to do so.

Opinions vary on these and other issues, but the people themselves should have the power to decide on them (with laws enacted by elected representatives) without judicial interference or imposition.

Advocates of judicial activism do not directly defend such a judicial power-grab because they cannot do so. It is indefensible. So instead they try to change the subject with false arguments. First, President Clinton warned the American Bar Association in 1999 of a “mounting vacancy crisis” in the federal courts. This must be one of his now-famous definitional tricks because the facts contradict him. At the time of this statement, 65 of the 830 positions on the federal district and appeals courts were vacant. Mr. Clinton’s own Justice Department says that 63 vacancies constitute “virtual full employment” for the federal courts. Two vacancies cannot make the difference between full employment and a “vacancy crisis.”

Advocates of judicial activism also talk of the need for “diversity” among federal judges. Sometimes, as in the case of nominee Ronnie White, this becomes plain old-fashioned race-baiting. Sen. Patrick Leahy (D-Vt.) said White’s defeat showed there was a “color test” for nominees, a perverse accusation that’s simply a ploy to lower the standards for approving controversial minority nominees. One Republican senator told this author that he did not know the nominee’s race until Sen. Leahy made his comments after the vote was over. In addition, the suggestion that courts should be “representative” institutions undermines the rule of law, a key foundation of freedom.

Columnist Thomas Sowell cut through all the distractions and misleading rhetoric when he wrote: “The real issue is not the number of judges but what kind of judges.” There exist two basic choices, a restrained judge who is a servant of the law, or an activist judge who is the master of the law. Understanding this issue does not require a legal education; in fact, most law schools no longer teach these basic principles and many educated lawyers and judges ignore them entirely.

Interpreting The Law, Not Writing It

A judge’s most important task is inter-preting the law. Since the law (whether a statute, a regulation, or the Constitution) already exists, interpreting it is simply determining what it means. What does the Constitution’s Fourth Amendment prohibition on -“unreasonable” searches and seizures by police mean? What does the federal statute prohibiting discrimination based on -“disability” intend? The meaning of -indi-vidual words like these determines the outcome of cases and, therefore, determines how the government conducts itself, the rights of individuals, and the freedom of all Americans.

A restrained judge believes that the meaning of these words already exists, that the meaning came from the legislatures or the people who enacted those words into law in the first place, and the judge’s job is to find it. Activist judges, in contrast, pursue their own agendas and believe they can give those words any meaning they choose. And, remember, that many of these appointments are lifelong terms.

A restrained judge takes the law as he finds it, while the activist judge believes he can make it up as he goes along, usually as a way of reaching the results he wants.

Consider a case where a convicted murderer claims the Constitution’s Eighth Amendment ban on “cruel and unusual -punishment” prohibits the death penalty. A restrained judge, no matter what his personal opinion about the death penalty, determines whether those who put that phrase in the Constitution meant it to prohibit the death penalty (they did not). An activist judge, on the other hand, makes that phrase conform to his personal opinion about the death penalty.

Why is this important to anyone other than lawyers? America’s founders described a restrained judge as one who uses “judgment” and an activist judge as one who uses “will.”

In explaining why the judiciary should be the weakest branch of government, Alexander Hamilton explained that “if [judges] should be disposed to exercise will instead of judgment, the consequences would equally be the substitution of their pleasure to that of the legislative body.” That is another way of saying that restrained judges allow the people to run the country while activist judges take over that job for -themselves.

Restrained judges allow the people to make the law and the people’s values to define the culture. The people are meant to decide issues such as public safety, educational standards, or whether or not religion plays a significant role in public life. Activist judges (who make the law mean whatever they wish) take that freedom away from the people and dictate these and other issues, typically with liberal and secular values.

Sen. John Ashcroft (R-Mo.) has said the real test is whether “citizens control that which matters most.” Because the answer depends on the kind of judge who sits on the federal bench, judicial selection is the most important single issue in national politics today.

Closing The Floodgates

Democrats and Republicans claim to take different sides on this issue. Since much of the liberal political agenda fails in the legislative process, it must be forced upon the -people through court decisions. In order to weed out nominees who would become activist judges, Senate Republicans passed a resolution in 1997 condemning judicial activism and adopted the recommendations of a task force for improving the confirmation process.

Yet it appears that Republicans are not walking their talk. The Senate has defeated only a single Clinton nominee, either in the Judiciary Committee or the full Senate. Mr. Clinton has appointed more judges than President Reagan at the same point in his two-term presidency and may well break Mr. Reagan’s all-time appointment record.

Though Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) has repeatedly stated that judicial activists are not qualified to sit on the federal bench, he has only voted against three Clinton nominees.

In January 1997, Sen. Hatch announced that “we are going to do what it takes to weed out those nominees who pay lip service to judicial restraint, but then think they can do anything they want once they don their robes.” Weeding them out, however, requires first identifying them. Unfortunately, none of the 1997 reforms approved by Senate Republicans have been implemented. The nominee questionnaire, for example, still asks only one question about judicial philosophy. Despite Sen. Hatch’s vow, he announced in May 1998 that “the purpose of these [nominee] hearings is not to ask tough questions” but simply to get a verbal commitment that nominees will not be activist judges.

Hearings in 1998 included an average of six nominees on a panel with fewer than four of the committee’s 18 Senate members attended. Hearings in 1999 have averaged seven nominees on a panel and still took less than two hours; the few minutes this allows for each nominee is usually taken up with introductions and pleasantries.

It’s interesting to see the varying approaches Republicans and Democrats have on the judicial nominee process. In the 1980s, Democrats filibustered Republican nominees to every level of the federal judiciary and defeated Republican nominees both in the Judiciary Committee and on the Senate floor. Republicans have yet to filibuster a single recent Democratic nominee and have defeated only one on the Senate floor. Even with so much at stake, and though they profess the right principles, Republicans have failed to promote a judiciary that will allow the people the freedom to govern themselves and define their culture.

With so much power in their hands, senators can defend their principles by taking some basic steps. First, they can refuse to confirm nominees to positions where additional judges are simply not needed. For example, the chief judge of U.S. Court of Appeals for the Fourth Circuit—which includes the Carolinas, the Virginias, and Maryland—has told the Senate that there is no need to fill two of the vacancies on his court.

Second, the Senate can refuse to confirm nominees whose records clearly show they would be activist judges, such as pending appointments to the appeals court like Marsha Berzon in California.

These goals can be accomplished best by the Senate Judiciary Chairman refusing to allow such nominees to progress through his committee, or by the Senate Majority Leader refusing to allow a vote on the most egregious nominees, or as a last resort by the Senate voting to defeat them on the floor.

The rejection of Ronnie White showed that a solid focus on the nominee’s record, and the will to resist race-baiting and other public relations gimmicks, can yield principled results.

America’s founders intended the judiciary to be the weakest branch of government, allowing the people to govern themselves and to determine the values that define the culture. Instead, the judiciary has become the most powerful branch, a profound legacy that can erode our freedom and radically change the culture.

Many “conservative” senators profess the right principles, but these senators must be urged to make those principles a reality and stop the confirmations of activist jurists with their own agendas. The Law Enforcement Alliance of America has long been a vital member of the growing Coalition for Judicial Restraint and will continue to be a key player in helping to educate Americans about the requirements of freedom.

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About the Author

Thomas L. Jipping, J.D., is Director of the Free Congress Foundation’s Judicial Selection Monitoring Project in Washington, D.C. For more information about this issue, visit their website at www.freecongress.org

"The National Constitution Center recently found that 41 percent of Americans do not know the number of branches in the federal government, and one-quarter cannot identify a single right guaranteed by the First Amendment. While only 35 percent of teenagers know the first three words of the Constitution, 59 percent can name the Three Stooges.”