- The Washington Times - Wednesday, March 8, 2000

By far the most significant issue in this year's presidential race is the fate of the federal courts.


By far the most significant issue in this year's presidential race is the fate of the federal courts. After nearly two terms of the Clinton administration, the number of Clinton appointees to the federal bench almost exactly balances the number of judges seated by previous Republican presidents. The next president of the United States will make his most indelible mark on future generations and the nation they inherit with the federal judges he selects; on the Supreme Court alone he may appoint as many as three new justices, perhaps including a new chief justice.
But the future of the judiciary namely, whether it will be dominated by a more conservative and constructionist interpretation of the Constitution, or by a more liberal and interventionist judicial activism is by no means a matter that hangs securely in the balance until after a new president has taken his oath of office next year. Today, the Senate will vote on two of President Clinton's most intensely contested nominees, U.S. District Judge Richard Paez, and labor lawyer Marsha Berzon, both of whom Mr. Clinton has tapped for the overextended and aggressively activist 9th U.S. Circuit Court of Appeals. The vote promises to be close. Republican senators would do well to consider carefully the importance of the crossroads they face, and the direction in which they alone are empowered to steer the federal courts with their votes today.
The Ninth Circuit is widely known as the nation's most liberal appeals court. One measure of its extreme activism lies in the fact that, over the past couple of terms, fully one-third of its decisions have been reversed by the Supreme Court, a far higher proportion than any other circuit court. This overall record includes a whopping 27 reversals out of 28 decisions reviewed by the Supreme Court in the 1997-98 term, with 17 of those reversals coming down unanimously.
In a perverse way, both Judge Paez and Ms. Berzon would fit right into the Ninth's groove. With no judicial record behind her, Ms. Berzon's clerkship with the activist Supreme Court Justice William Brennan and subsequent involvement with such simpatico organizations as the Brennan Center for Justice and the Women's Legal Defense Fund, reveal a personal political agenda that points to an activist legal temperament. As for Judge Paez, he is not only a self-described liberal, he is also a self-described judicial activist. He once explained his legal outlook this way: "I appreciate … the need of the courts to act when they must, when the issue [results from] the failure of the political process to resolve a certain political question. There's no choice but for the courts to resolve the question that perhaps ideally and preferably should be resolved through the legislative process."
No choice, indeed. It would seem that Judge Paez believes that simply donning a long, black robe confers upon him the powers of a kind of "superlegislator" with an ever-expanding mandate. Clearly, it is the urgent duty of the Republican Senate to moderate, not intensify, such strains of judicial activism that, more and more, are foiling the will of the legislative branch, and, by extension, the American electorate itself.
This is nothing to be taken lightly. The majority the GOP currently enjoys in Congress derives in no small part from the desire of American citizens to wrestle free of an overbearing judiciary. Writing on this newspaper's op-ed pages today, Thomas J. Jipping of the Free Congress Foundation brought up a very apt comment made by then-Senate Minority Leader Bob Dole back in 1993. When taken to task by a television show caller for failing to block Mr. Clinton's judicial nominees, Mr. Dole replied, "Give us a majority and if we don't produce, you ought to throw us out."
Mark his words. If a Republican majority in the Senate is unable to take a stand on basic conservative philosophy and defeat two genuinely activist nominees, one must wonder what a Republican majority is for, and how long it can last.

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