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," said 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 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 Constitution is the reason why an unprecedented number of Bush nominees are not receiving confirmation. 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 up 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 are now 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 Supreme Court. These included Helvering v. Davis, which brought into law the power of Congress to independently make decisions 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 Court¹s role to render these kinds of legal decisions, which, through precedent, become policy.
Of more concern to Pilon and others who agree with him are decisions by federal District and Appellate judges that modify laws or implicitly make policy, which they cite as examples that the courts have, over the past century, shifted from acting neutrally to acting legislatively. The recent decision by the Ninth 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.
The same type of judicial activism, some say, is apparent in a series of Jane Doe decisions made by Priscilla Owen of the Texas Supreme Court, in which she ruled to strengthen parental notification laws regarding abortion for minor girls. If Owens, who has been nominated by Bush for a federal judgeship, is confirmed by the Fifth Circuit Court of Appeals, many believe she will continue to recast legislation as she has done in Texas, this time from the federal bench.
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 to essentially re-write laws by setting precedent that should be the province of the Supreme Court alone -- a circumstance clearly beyond the Constitution's intent regarding the power of federal judges.
Because of this, Senators now evaluate judicial appointees by assuming that their record of decisions indicates how they will probably shape laws -- unconstitutionally, according to Pilon -- in the future.
The statistics reflect this, says Pilon. Only nine of Bush¹s 29 first-year appointees for circuit courts have been confirmed, and two of those nine were Democratic holdovers, he says. That makes an approval rate of just 28 percent, compared to an 86 percent rate during the same period in the Clinton administration. Eight of Bush's first 11 circuit court appointees have been left to hang without confirmation for more than a year,
At the heart of this corruption of the Constitution are the revolutionary changes brought about by the New Deal, writes Pilon. The New Deal produced a surfeit of federal and state regulation aimed at solving all manner of social ills, says Pilon. Naturally, some of these new laws contradicted each other and judges were "asked to make sense of often inconsistent or incoherent policy, fairly inviting them to be parties in the legislation and hence policy makers themselves."
In parsing obscure statutory or regulatory language, judges often ended up implicitly reshaping or rewriting the law to accord with the principles of social justice.
"When government activists fail to achieve their goals in the political branches, they often go to the courts," writes Pilon. "Regrettably, the Warren and Burger Courts, always deferring to the legislative pursuit of 'social justice,' were often only too willing to step into the fray, thinking themselves a legislature of nine."
Such behavior on the part of the Supreme Court violates the Constitution, says Pilon, who says that the Constitution requires the judiciary "to act non-politically -- not from will or interest, but from reason, according to law, consistent with the first principles of the system. If it does not, then to that extent the rule of law is undermined and politics trumps law."
In Pilon's view, for example, welfare rights such as the right to education, housing, or health care, are not constitutional, but spring instead from an altered doctrine of enumerated powers created in 1937 by a Court that had been placed under intense political pressure.
Pilon's views have their share of critics. "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, who is affiliated with the Presidential Appointee Initiative at the liberal-progressive Institute for Policy Studies.
Raskin believes that the Constitution permits Senators to weigh political concerns about judges, and says that the Senate is a co-equal 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."
The battle over the "fate of the modern rights agenda" has taken center stage in the confirmation hearings, and Senators are using litmus tests to slow or halt confirmation of many Bush judicial nominees. Litmus testing involves the exclusion of nominees from the bench on purely ideological grounds. For example, many Senators refuse to confirm a nominee who does not agree with them on the legality of abortion.
This practice goes against Pilon¹s reading of the Constitution, which dictates that judges should act non-politically, and so their confirmation should not rest on their politics or ideology, but on their willingness to act rationally and according to the law.
"Judges today set far more national policy than they used to -- and far more than the Constitution contemplates," Pilon writes. "In fact, it is because the original design has been corrupted, especially as it related to the constraints that the Constitution places on politics, that we have come to ideological litmus tests for judges."
Sarah Binder, a senior fellow in governance studies at the Brookings Institution, dislikes the negative implications of the term "ideological litmus test." Since the Constitution is silent on what criteria the Senate should use when it exercises its power to advise and consent on presidential appointments, she says Senators have a right to set their own rules.
In response to Pilon's claim that the politicization of the Constitution leads to disintegration of the rule of law, Binder says: "There's a question of level here. District courts are bound more by precedent than Appellate court judges. The closer we get to the Supreme Court, the more we should conceptualize judges as policy makers. They are political actors constrained by precedent, but they are also making precedent, and it doesn't make sense to talk about judges being outside the realm of the political."
"There's a bit of political profiling going on," regarding the confirmation of federal judicial appointees, says Frederick "Tripp" Baird from the conservative Heritage Foundation. "White, male, Christian, conservatives need not apply. Especially if they are from the South. All you have to do is look at the Charles Pickering nomination to the 5th Circuit of the U.S. Court of Appeals. Pickering was caricatured as a racist, but when the onion was peeled, it turned out that even the Mississippi NAACP supported him. It was just that the liberals in Washington didn't like him or his ideology."
Baird agrees with Pilon that the Constitution is "being trampled" in the confirmation process, but pins the problem on the belief of the "far Left" that President Bush is not a legitimate resident of the White House.
"They are playing slow ball with all of Bush¹s nominees because they don't think he should be president in the first place -- not that you will get any of them to say that in public," said Baird. Instead, he says, Democrats have made an issue out of nominees' past opinions and decisions.
"Both sides should stop flattering themselves into thinking that they have a monopoly on truth," says Raskin. "There is no objective truth, for instance, about whether there is a right to privacy in the Constitution. It¹s a matter of interpretation. And there is nothing wrong with a Senator saying he won't approve a justice who won¹t uphold the right to choose (abortion), as long as that is his interpretation of the Constitution and he
is representing he views of his constituents."
Pilon is hopeful that some aspects of the pre-New Deal federal courts can be reclaimed, but concedes that the majority of Republicans are not over-anxious to defend his vision of the Constitution.
"Republicans, too, have bought into a conception of government where a vote gets goodies for constituents. They find themselves unable to defend nominees on anything other than procedural grounds, and come across as timid Democrats," he says.
The stakes are high on questions about judicial confirmations, since at least one seat on the Supreme Court is expected to open up soon. The kind of confirmation process that can be expected by Bush's Supreme Court nominees is being determined by today's treatment of nominees to the lower court.
Says Brookings' Sarah Binder: "I don't think there's any way to turn back the clock and say that judges are only to apply the law, not to make it."