Tuesday, October 1, 2002

An independent federal judiciary is our constitutional crown jewel.Supreme Court Chief Justice William H. Rehnquist and Associate Justice Ruth Bader Ginsburg, philosophical bookends, have both affirmed that high acclaim. And it is deserved.

In sharp contrast to partisan politicians who populate Congress and the White House, federal judges customarily decide cases within a narrow range of interpretive legal conventions unswayed by partisanship or the identities of the parties. That the vast majority of federal appellate decisions are unanimous should thus be unsurprising.

The first commandment of a federal judge, fortified by a strong professional ethos, is to get the law right irrespective of popularity or political fallout. That is what differentiates the judicial branch from the political branches and makes for an authentic check against overreaching by Congress or the president. Moreover, the ordinary citizen obeys judicial decrees and celebrates the rule of law largely because judges employ nonpartisan interpretive principles to decide cases.

A few mavericks occasionally stain the judicial ermine with freestyle rulings, such as the recent “Pledge of Allegiance” caper in the U.S. 9th Circuit Court of Appeals. But such follies capture headlines precisely because they are not the customary judicial trademark but eye-catching deviations.

Our cherished independent judiciary is now under greater assault than at any time since President Franklin D. Roosevelt’s ill-conceived plan to pack the Supreme Court with New Deal poodles. The new nemesis is crafty Sen. Charles E. Schumer, New York Democrat, but the general objective of annexing the judiciary to the squalid kingdom of politics is the same.

Mr. Schumer occupies the exalted chairmanship of the Senate Judiciary Subcommittee on Administrative Oversight and the courts. From that high altar, Mr. Schumer preaches senatorial blacklisting of any judicial nominee of President George Bush if either their politics or viewpoints jar Democrat sensibilities or special interest groups. He scoffs at the idea that Senate confirmation should pivot on whether the nominee would accurately discern the law and further its enlightened evolution with trenchant reasoning (frequently in dissent) in the manner of Justices Oliver Wendell Holmes and Louis D. Brandeis.

To Mr. Schumer, a judge in deciding cases should be like a politician at an emporium, dispensing goodies evenhandedly to a popular flock. For example, a National Environmental Policy Act decision favoring an industry group should be balanced with a decision favoring environmentalists. If the law would disturb such balance, then too bad for the law.

The lunacy of Mr. Schumer’s crass conception of the judicial task would have been catastrophic during the Civil Rights Movement of the 1950s and 1960s featuring heroes like Rosa Parks, Martin Luther King, Little Rock high schools youths, and James Meredith. Federal judges, primarily appointed by President Dwight D. Eisenhower, consistently ruled in favor of civil rights proponents in applying the nondiscrimination mandate of the Supreme Court in Brown vs. Board of Education (1954). Racist Govs. Orville Faubus, George Corley Wallace, and Ross Barnett repeatedly lost. But according to Mr. Schumer’s obtuse standard, the racists were entitled to win a few cases as consolation prizes for bearing so many crushing defeats.

Mr. Schumer’s sermons are embraced as gospel by all Democrat members of the Senate Judiciary Committee, and as more than gospel by Chairman Patrick Leahy, Vermont Democrat. Their aspiration is a federal judiciary advancing the political agenda of Democrat liberals by manipulating interpretations of the Constitution and federal statutes. Their interim tactic until a Democrat occupies the White House is delay with passes for nominees bereft of intellectual firepower.

Mr. Schumer’s own words and actions expose his blindly partisan vision. In a Jan. 26, 2001, column in the New York Times, the senator praised President Eisenhower for “nonideological” nominees and reliance on the American Bar Association to rate judicial candidates. Eisenhower’s two most prominent “nonideological” nominees, of course, were the notoriously liberal Chief Justice Earl Warren and Associate Justice William Brennan.

Chief Justice Warren’s signature question during oral argument was whether a practice was fair; the Constitution was exiled to the grandstands. That type of neo-impressionistic decision-making is exactly what Mr. Schumer craves, but only if liberal judges are doing the pitching. The Bush nominee to the U.S. 5th Circuit Court of Appeals, Priscilla Owen, captured the American Bar Association’s premier rating. Mr. Schumer should have been elated according to his professed confirmation standards.

But he orchestrated Justice Owen’s defeat to propitiate his pro-abortion constituency, and tacitly decried consistency (like Ralph Waldo Emerson) as the hobgoblin of small minds.

Mr. Schumer insisted in his column that “the balance of the courts, especially the Supreme Court, leans decidedly to the right.” The anemic evidence he proffered was high court decisions denying Congress the power to manipulate the Commerce Clause to regulate guns in local schools, religion in public life, or create federal civil suits for violence against women made illegal under state law. Mr. Schumer does not question the correctness of the rulings, but frets they show the court’s “domination by conservatives.

What the senator neglected to note about the Rehnquist court speaks additional volumes against himself: liberal shrines like Miranda vs. Arizona (1966) and Roe vs. Wade (1973) have been undisturbed; the constitutional foundations of the death penalty have withered; freedom of speech and of the press have never been stronger; and, the “moderates” of the court Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter occupy the commanding heights.

In sum, shouldn’t Mr. Schumer’s attempt to displace law with liberal Democrat politics as the touchstone for judicial decisions deserve the same ill-reception as President Roosevelt’s earlier edition? If he succeeds, won’t we have lost the crown jewel of our Constitution?

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