- The Washington Times - Tuesday, May 15, 2001

Chief Justice of the United States William Rehnquist and Associate Justice Ruth Bader Ginsburg, philosophical foes, both halo the federal judiciary as the jewel in our constitutional crown.
The subtext of that lofty consensus is that federal judgeships are too important to be left to mediocrities, despite former Republican Sen. Roman Hruskas ode to the pedestrian in feebly defending defeated Supreme Court nominee G. Harrold Carswell: "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers and they are entitled to a little representation, arent they?"
President George W. Bush and his Nestor-like judicial selection team commanded by White House Counsel Al Gonzalez deserve lavish praise for renouncing Hruska in last Wednesdays announcement of 11 impeccable federal circuit judge nominees. Their uniformly spotless credentials bespeak refreshing and trenchant thinking in a legal world stunted by the backward-looking and hyper-timorous. As Justice Oliver Wendell Holmes scolded in "The Path of the Law": "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."
Judicial shipwrecks are characteristically captained by mainstream mediocrities, not intellectual giants. Thus, the odious "separate but equal" doctrine in Plessy vs. Ferguson (1896) was fashioned by Justice Henry Brown; the enshrinement in the due process clause of free market economics was the handiwork of Justice Rufus Peckham in Lochner vs. New York (1905); and the constitutional thwarting of congressional power to rescue blacks from Jim Crow abominations was proclaimed by Justice Joseph Bradley in the Civil Rights Cases (1883).
Mr. Bush apparently clipped three luminaries from his list of judicial nominees — Peter Keisler for the 4th U.S. Circuit Court of Appeals and state judge Carolyn Kuhl and Rep. Christopher Cox for the 9th U.S. Circuit — because of partisan screeching by Democratic senators from Maryland and California, respectively.
It is objected of Mr. Keisler (former clerk to Supreme Court Justice Anthony Kennedy), for instance, that his home and professional ties to Maryland are thin. The staple of the federal judiciary, however, is the interpretation of federal statutes and the Constitution with uniform application. There are no special rules for Maryland or any other state. The Civil War definitively settled the matter. Marylands senators transparently balk at Mr. Keislers persuasively argued philosophical bent which they disrelish. According to The Washington Post, law professor Akhil Amar at Yale, which hires conservatives with less frequency than Halleys Comet, opined: "I voted for the other guy. But if George Bush is president, youre not going to do better than Peter."
If the federal judiciary is to rise above mediocrity, the Senate must cease its crass political bargaining with the president over nominees, a constitutional affliction that has become an epidemic spread by both Republicans and Democrats after the disgraceful rejection of glittering Supreme Court nominee Robert H. Bork. Even the slow-learning Capulets and Montagues came to abandon the injurious politics of revenge, and the Senate should learn from their example.
Undistinguished appointments are the tropism of collective decisions. Thus, the Founding Fathers repudiated a plural executive, denied the Senate judicial selection authority, and intended Senate confirmation hearings to screen only for cronyism, incompetence and corruption. As Alexander Hamilton sermonized in Federalist 76: "n every exercise of the appointing to offices by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances will of course be the result of either a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight."
Sen. Charles Schumer, New York Democrat and a member of the Senate Judiciary Committee, nevertheless, is insisting on "mainstream" brains as a litmus test for confirming Mr. Bushs judicial nominations. Under that benighted standard, towering Justices Louis D. Brandeis, Benjamin Cardozo and Holmes would have stumbled, and the law would have frozen in Pavlovian imitation of the past. That is no more respectable than would have been braying against Albert Einstein as a physics professor at Princeton because of his challenge to mainstream Newtonian dogmas.
The Senate Judiciary Committee should adopt a permanent rule proscribing questions of judicial nominees unrelated to competence (including temperament) or corruption of the selection process, such as extracting promises to vote in favor or against particular precedents. To paraphrase President Abraham Lincoln, we cannot ask a man what he would do, but if we did and he answered, we should despise him for it.
Finally, President Bush deserves a 21-gun salute for ejecting the American Bar Associations Committee on the Federal Judiciary from its privileged prenomination glimpse and appraisal of judicial candidates. Committee members are neither politically nor philosophically impartial, nor necessarily credentialed to evaluate. Thus, United States Circuit Judge Richard Posner, whose brilliance outshone the combined cerebral faculties of the ABA Committee like daylight doth a lamp, received a lukewarm "qualified" rating; and, four committee members defamed Mr. Bork perhaps the most laureled and tested Supreme Court nominee in history as not qualified, as though a Stradivarius were unfit for an orchestra.
The ABAs voice on judicial appointments should be no greater nor less than the AFL-CIOs on Labor Department nominations or the Chamber of Commerces on Commerce Department selections.

Bruce Fein is general counsel for the Center for Law and Accountability.


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