- The Washington Times - Sunday, December 18, 2005

The integrity and strength of the federal judicial system is being compromised by advice and consent of the U.S. Senate misshapen by heavily politicized and misguided judicial selection standards. The rare phenomenon of dual simultaneous vacancies on the Supreme court has focused the public eye on the federal judicial system’s flawed selection process.

The deformed process is the previously invisible catalyst ultimately producing public discontent with the judiciary. Reforming this process and its faulty criteria is the remedy to the frequent complaint that the judiciary is out of step with the nation.

Selection of blank-slate, legal eunuchs for judicial appointment plunges the American judiciary toward mediocrity. Lack of leadership, scholarship, conviction and opinion seem to be the prerequisites for U.S. Supreme Court nominees.

An extensive track record of legal writing and scholarship, deemed at one time the strongest indicia of solid grounding in the law, runs counter to the current demand for anonymity. Legal scholars and lucid writers like Oliver Wendell Holmes and Benjamin Cardozo would be summarily rejected because of the wealth of opinion revealed by the product of their erudition. Leaders like William Howard Taft, a former president, and Earl Warren, a former governor, would sink in the mire of partisan bickering.

A history of character and conviction is even deadlier in the current climate than a probing academic or trailblazing political record. The noble Sir Thomas Moore would not have a chance of making anyone’s short list.

Ladder-climbing opportunists or faceless government bureaucrats have better chances of being selected for the bench today than lawyers of substance. Having ever strongly expressed an opinion, bravely fought for a cause or lived a varied life rich in experience are flaming torches consuming prospective justices. Even Judge Samuel Alito, the latest Bush Supreme Court nominees, and his handlers find it necessary to wiggle and worm through his devoutly Catholic 92-year-old mother’s statement that “of course” her son opposes abortion and Judge Alito’s 20-year-old declaration of conservatism as an applicant for a government job with the Reagan administration.

To successfully tap dance through the audition for the big court, this judicial nominee must dodge and weave to disassociate himself with his family’s values without alienating those who share those values. He must dismiss his espoused conservatism as youthful posturing for a job.

To win this truly important Supreme Court post, Judge Alito must choose between being trapped by admitting a past life as a real person with opinions, feelings and beliefs or portraying himself as having been an obsequious job applicant willing to say anything to get an entry position.

Is false posturing to get a job the character trait the judge brings with him to the judicial hearing for the Supreme Court seat? Is this character trait more desirable in a judge, whose momentous decisions can steer our nation, than a forthright, bold acknowledgement of a history of conviction?

Absence or disavowal of any remnant of a discernible opinion on any controversial issue has become the first essential criterion for the judicial nominee. Emerging unscorched from this ring of fire leads to the murky waters of jurisprudence reduced in the sound-bite jargon of pop legal culture to the battle of strict construction versus “living constitution” theories of interpretation. This is a misleading and artificial construct for judging prospective judicial nominees. No judge worth his salt would deny that judicial decisions must be confined to the parameters of the law. To say otherwise, would be comparable to a medical doctor admitting to administering voodoo instead of medical science.

Robert Bork was not “borked” by liberals because of his allegiance to original intent, nor would have conservatives blocked Justice Stephen Breyer had he revealed his recently espoused hybrid “active liberty” analysis of meaning and consequence in the context of present times.

The current judicial philosophy criterion is artifice for opposing nominees’ personal views that are of political significance to constituents of senators reviewing the nominee.

A loyalty oath to precedent is the final fraudulent rung judicial nominees must climb. Trial judges are bound by strictures of established law, and appellate reversal is the remedy for disobedience. However, it is nonsense for conservatives or liberals to insist appellate judges must slavishly adhere to the latest precedent. If that were the case, the legal system would be caught in appellate error gridlock for perpetuity, precluding future landmark decisions like Brown v. Board of Education. Honoring precedent as a core building block of a stable judicial system does not require an appellate court to ignore flawed analysis in prior decisions.

Proven intellectual probity, scholarship, character, leadership, maturity, diversified life experiences and fairness, the true earmarks of the best appellate judges, have been displaced with deceptive, superficial and potentially harmful selection criteria. Lawyers with safe lives cloaked in anonymity, or Machiavellian opportunists who mold their opinions in private conversation to suit their listeners and conceal their true views or lack of conviction, are dangerous people to invest with the weighty legal burdens of our society.

Bill Constangy is a North Carolina trial court judge and author of a book on employment law. He is a frequent contributor of newspaper articles dealing with legal issues.

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