- The Washington Times - Tuesday, June 26, 2001

The more things change, the more they stay the same. Senate Democrats have long pushed for appointment of judges who will deliver a certain political agenda, even if they have to make law to do it. Today's hearing titled, "Should Ideology Matter? Judicial Nominations 2001" is designed to provide cover for that campaign.

The campaign threatens the very freedom America's founders designed this political system to protect. In that system, the people govern themselves, decide policy issues and define the culture. This system operates within boundaries set by a written constitution, written so those boundaries would be clear and could only be changed deliberately by the people themselves.Those boundaries include giving legislative power, or the power to make law, to the people and judicial power, the power to interpret law, to judges.

This system protects freedom without dictating the results of exercising freedom. As the Supreme Court recently reaffirmed, priorities such as the separation of government power were established "to ensure our fundamental liberties." Since freedom itself is more important than the results of its exercise; protecting freedom requires maintaining those priorities. The real test comes when doing things the right way does not produce preferable results. If a law the people make is undesirable, is it legitimate to get others, such as judges, to make more desirable law, even at the cost of freedom?

Today's hearing is an attempt to justify that assault on freedom. The word "ideology" in its title means political ideology; that is, political results. The question, "should ideology matter?" is asking whether judges should be chosen based on the law they will make themselves rather than on their following the law made by the people. It is asking whether judges may cross the line from interpreting to making law in order to further a political agenda, to deliver certain goods at any cost, rather than simply follow the law so we can be free.

Think for a minute what this pursuit of political ideology entails. Those picking judges must know not just whether a nominee thinks he can make law on the bench, but also what law he intends to make. That is, they must know how a nominee will rule on key issues in future cases. Hence the trend in the last 15 years by Democrats toward increasingly intrusive questioning of nominees' views. Their inquisition demands to know not simply a nominee's view of the proper role and conduct of a judge. That goes to whether a judge may make law at all. It goes far beyond to examine a nominee's views on specific legal and political issues so that they know what law they can expect the nominee to make once confirmed.

This has been a favorite tactic of Democrats since at least 1987, when Harvard law professor Laurence Tribe counseled them to use it. Back then, Sen. Patrick Leahy, now Judiciary Committee chairman, asked Supreme Court nominee Robert Bork: "Would you agree or disagree … that the cases establishing a constitutional right to privacy …became part of our law, and that whatever theoretical challenges may be available to them, it is too late for the Supreme Court to tear them up?"

Demanding to know how a judge will rule on issues is demanding that he violate his judicial oath before even taking it, as a condition of employment. That oath, prescribed by federal statute, reads in part: "I do solemnly swear that I will administer justice without respect to persons … and impartially discharge and perform all the duties incumbent upon me as" a federal judge. Entering judicial service having made promises and commitments makes this impossible and obliterates judicial independence, what Chief Justice William Rehnquist has called the "crown jewel" of America's judicial system. Such judicial IOUs render judges impotent to protect the rights of citizens by obligating them to implement the political agenda of those who gave them power.

By identifying a nominee's political ideology, the results he would reach (as opposed to his judicial philosophy, how he would reach his results) proves elusive, Democrats may look for views to attribute to nominees. Since many nominees were practicing lawyers, either in the private or government sector, the inquisitors often try to attribute those clients' views to the nominee. This tactic is particularly appealing when, for example, a lawyer in the U.S. Solicitor General's office signs a Supreme Court brief taking the position that Roe vs. Wade was wrongly decided.

Yet even the American Bar Association's Model Rules of Professional Responsibility dispels this argument. Rule 1.2(b) states: "A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities." The same Democrats insisting that the ABA sets the "gold standard" for evaluating judicial nominees ignore that same ABA's more inconvenient standards.

Those, such as Mr. Tribe, who helped politicize the confirmation process in the 1980s, are behind today's hearing as well. The objective is the same: To make legitimate what America's Founders and the Constitution make illegitimate; that is, judges making law. To say that ideology does matter, that judges should take law-making power away from the people, is to say that results are all that count and that the ends justify the means. To say that ideology matters in picking judges is to say that freedom does not matter for anyone.


Thomas L. Jipping is director of the Free Congress Foundation's Judicial Selection Monitoring Project.

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