- The Washington Times - Tuesday, May 14, 2002

If history is against you, argue contemporary times; if modernity is against you, enlist tradition; but if both are against you, stoop to sophistry.Last Thursday, Senate Judiciary Committee Chairman Patrick Leahy, Vermont Democrat, and Subcommittee Chairman Charles Schumer, New York Democrat, bettered that cynical advocacy advice. The pair ardently defended the committee's Fabian tactics (i.e., refusing hearings or committee votes) to thwart a bevy of President George Bush's glittering judicial nominees. According to Mr. Leahy and Mr. Schumer, the nominees are "right wing" ideologues eager to substitute conservative politics for the Constitution as the touchstone for judicial decisions.

Mr. Leahy pointed to the shipwreck of President Franklin D. Roosevelt's ill-conceived "court packing" statute by an overwhelmingly Democratic Senate as proof of his party's devotion to nonideological appointments. But nine-tenths of the story was clipped. President Roosevelt still packed the Supreme Court with eight crusading New Dealers; but it was achieved on the installment plan paced by deaths and retirements of the justices rather than in one fell swoop. And Senate Democrats supinely surrendered to the president.

Roosevelt first appointed Sen. Hugo Black, Alabama Democrat, a New Deal stalwart and chief proponent of the pioneering Fair Labor Standards Act.

Next in FDR's queue was Stanley Reed, who had earned his spurs by defending the constitutionality of New Deal legislation as solicitor general of the United States (a position currently occupied by Theodore Olson).

Mr. Reed was followed by Roosevelt confidant and Harvard Law School engage, Felix Frankfurter. He had championed FDR's court packing legislation; had populated the president's legal bureaucracies with New Deal apostles; and, had left a paper trail of politically fervent liberalism too long to measure.

Roosevelt tapped William O. Douglas as his fourth Supreme Court appointment. Douglas' intellectual and political loyalties to the New Deal blazed. He hailed from the academic frontiers of Columbia and Yale; had been appointed to the newly minted Securities and Exchange Commission in 1936 and elevated to chairman in 1937; and, was a New Deal jewel in FDR's poker playing circle with the likes of Interior Secretary Harold Ickes and presidential intimate Harry Hopkins.

Frank Murphy, Supreme Court nominee No. 5, also shined with New Deal credentials. He had been mayor of Detroit, governor general and high commissioner of the Philippines, and attorney general of the United States prior to his elevation to the high court. Murphy had become a virtual public shrine for labor unions by sympathizing with "sit-down" strikes at General Motors and elsewhere.

James F. Byrnes, following Murphy, was plucked by Roosevelt from the U.S. Senate. A South Carolina Democrat with then-characteristic Southern prejudices, Byrnes had earlier served in the House of Representatives and campaigned sleeplessly for FDR in 1932. The president seriously considered Byrnes as his vice-presidential running mate in 1940.

Robert H. Jackson, Roosevelt's penultimate Supreme Court pick, had rubbed elbows with New Deal politics. In the Roosevelt administration, he had climbed from general counsel of the internal revenue service to Assistant Attorney General of the Tax Division of the Justice Department, to Assistant Attorney General for Antitrust, to solicitor general of the United States, and to attorney general. Jackson had won FDR's affection as both a personal adviser and legal defender of the controversial "bases for destroyer" swap with Great Britain during World War II.

Wiley Rutledge completed FDR's Supreme Court octet. A liberal academic and unwavering cheerleader for the president's court-packing debacle, Rutledge had been appointed in 1939 to the United States Court of Appeals for the District of Columbia Circuit. The New Deal knew no better friend on the Supreme Court.

With FDR's New Deal ideologues in control, the Supreme Court overruled approximately three dozen precedents from 1938-1944. Constitutional law was largely remade with a New Deal image.

In sum, Mr. Leahy's declaration or insinuation that Senate Democrats have historically balked at ideological judicial appointments collides with a mountain of discrediting facts.

Irrespective of history, Mr. Schumer celebrated judicial nominees who ape prevailing orthodoxies and legal prejudices, i.e., do no original thinking. Mr. Schumer euphemistically labels such plodders as "nonideological." According to the New York senator's obtuse reasoning, while astronomy prospers from its Galileos, physics from its Newtons and Einsteins, music from its Mozarts and Beethovens, and history from its Frederick Jackson Turners, the federal judiciary prospers by intellectual stagnation.

John C. Roberts, Jr., nominated by President Bush to the United States Court of Appeals for the District of Columbia Circuit (but marooned without a hearing by Senate Judiciary Committee Democrats), epitomizes in brilliance what Mr. Schumer's obtuseness deplores. He scaled the academic peaks at Harvard University and Harvard Law School; he then served as a law clerk to then-Associate Justice William H. Rehnquist, as associate White House counsel, and as principal deputy solicitor general of the United States.

In private practice at Hogan & Hartson, Mr. Roberts has become the gold standard for Supreme Court advocacy. He has argued an impressive 37 cases before the high court on behalf of a rainbow coalition of causes, including preferences for Native Hawaiians and environmental restrictions on Lake Tahoe development. Democratic state attorney generals have retained Roberts for Supreme Court litigation.

The liberal American Bar Association's Committee on the Federal Judiciary unanimously crowned the nominee with its highest ranking. In sum, if Mr. Roberts' Olympian credentials don't pass muster in the eyes of Mr. Leahy and Mr. Schumer, then only mediocrity and intellectual anemia will enjoy representation in the federal judiciary if the Democratic diumvirate have their way.

In the spirit of Emile Zola's "J'accuse," President Bush should challenge the two to hold prime-time hearings on Mr. Roberts' nomination and let the American people decide whether the candidate is a dangerous ideologue or an unstained legal colossus. Their current machinations to kill the nomination by clever inactivity marks one of the committee's most disreputable hours.


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