- The Washington Times - Wednesday, March 8, 2000

The Senate this week will vote on two of the most controversial judicial nominations in recent memory. The result may well demonstrate whether Republicans deserve their majority status.

President Clinton has nominated U.S. District Judge Richard Paez and labor lawyer Marsha Berzon to the U.S. Court of Appeals for the Ninth Circuit. Nearly twice as large as other circuits, it may also be the most influential, which is unfortunate because even the liberal New York Times calls it "the country's most liberal appeals court." Two-thirds of its judges are Democratic appointees. The Supreme Court has reversed its decisions nearly 90 percent of the time over the past six years, far more than any other circuit. In 1996, Chief Justice Rehnquist wrote that "some panels of the Ninth Circuit have a hard time saying no to any litigant with a hard-luck story." In its 1997-98 term, the Supreme Court reversed 27 of the 28 Ninth Circuit decisions it reviewed, 17 unanimously and seven without either briefing or oral argument. Because this aggressive activism so grossly distorts the law, many senators have long urged special scrutiny of Ninth Circuit nominees.

Even ordinary scrutiny shows that these nominees will push that court further in the wrong direction. The L.A. Daily Journal quotes Judge Paez, who calls himself a liberal, describing his own aggressively activist judicial philosophy. Courts, he says, must tackle political questions that "perhaps ideally and preferably should be resolved through the legislative process." America's Founders, however, did not suggest that legislatures exercise legislative power merely as an ideal or a preference; the first article of the Constitution they established, and that Judge Paez is sworn to uphold, states that "all legislative powers" are granted only to the legislature.

The L.A. Times says Judge Paez was a liberal state court judge. When nominated to the federal district bench, no less an arbiter of liberalism than the American Civil Liberties Union considered him "a welcome change after all the pro law-enforcement people we've seen appointed."

Judge Paez struck down a Los Angeles anti-panhandling ordinance enacted after a panhandler killed a young man over a quarter. He ruled that companies doing business overseas can be held liable for human rights abuses committed by foreign governments. The Institute for International Economics says this novel ruling would "vastly expand the jurisdiction of the U.S. court system." The U.S. Chamber of Commerce, which normally steers clear of nomination fights, cites this decision in opposing Judge Paez. His decision against any jail time for U.S. Rep. Jay Kim, guilty of the largest admitted receipt of illegal campaign contributions in congressional history, prompted the newspaper Roll Call to suggest that Judge Paez may be "too soft on criminals to be an appellate judge."

The nominee also appears to place politics ahead of both judicial impartiality and independence. In a 1995 speech, for example, he attacked two California ballot initiatives while they were still in litigation even though the judicial code of conduct prohibited him from comments that "cast reasonable doubt on [his] capacity to decide impartially any issue that may come before [him]."

Marsha Berzon's record may be as a lawyer and not a judge, but the clues lead to the same conclusion. Her training in the political use of the law had early impetus as a law clerk to activist Supreme Court Justice William Brennan and continued with membership or leadership of activist legal organizations such as the Brennan Center for Justice and Women's Legal Defense Fund. Hers is not benign disinterest; the political agenda these groups pursue in the courts, she says, hold "a lot of importance and meaning for me."

Miss Berzon repeatedly pressed extreme arguments that ignored the plain meaning of statutes and Supreme Court precedent, the very hallmarks of judicial activism. These include arguing that state bar associations can use compulsory dues of objecting members for political lobbying and that the right to refuse to join a labor union is somehow less protected by the First Amendment than other speech. These and other aspects of her controversial record made her one of only two Clinton nominees ever to receive eight negative votes in the Judiciary Committee.

Senators concerned about a politicized judiciary should find these nominations easy to oppose. Three things stand in the way. First, since a politicized judiciary is impossible to defend, its advocates stoop to playing the race and sex cards. Mr. Clinton first chooses women and minorities as some of his most radical nominees. Senators who would oppose white males with the same record face those dreaded labels "racist" and "sexist" if they don't create a double-standard and vote for these. Hopefully, senators will reject this perverse tactic and focus on the record which has led more than 300 grassroots organizations to oppose Judge Paez.

Second, those who cannot defend a politicized judiciary continue playing the numbers game. Batting 338-1 so far, however, Mr. Clinton has appointed more than 44 percent of all federal judges in active service. Democratic appointees now outnumber Republicans throughout the judiciary.

Third, the lure of patronage tempts individual senators to put their personal interests ahead of the country's interests. Rejecting these radical nominees means showing Americans that the Republican Party stands for at least basic principles of the rule of law and a judiciary independent from politics.

In 1993, then-Senate Minority Leader Bob Dole appeared on a live public affairs television show and a caller criticized him for failing to block Mr. Clinton's judicial nominees. He responded: "Give us a majority and if we don't produce, you ought to throw us out." Americans gave Republicans the majority and rejecting the Berzon and Paez nominations is their chance to produce.

Thomas L. Jipping, J.D., is director of the Free Congress Foundation’s Judicial S election Monitoring Project.

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