- The Washington Times - Saturday, July 9, 2005

In addition to the havoc wrought by the judiciary in our times, there is havoc wrought on the judiciary by others.

Some have blamed the murders of a judge not long ago, and the murder of another judge’s family, on critics of judicial activism. But, in each case, the motive seems plainly to have been personal animosity growing out of a judge’s ruling against the particular individuals concerned.

It is doubtful these murderers ever read a law journal article or a Federalist Society paper on judicial activism. It is one of many signs of the shameless dishonesty in discussions about our courts that anyone would try to silence criticisms of activist judges by groundless claims criticisms have resulted in violence.

Such claims are even more shameless since many of the people who decry criticism of judges’ official acts do not hesitate to engage in personal smears and outright lies against judicial nominees who fail the liberal test of political correctness.

The harm this does is not confined to the nominees demonized and insulted on nationwide television during confirmation hearings before the Senate Judiciary Committee. Nor is this a necessary part of the Senate’s “advise and consent” duty, because any senator can vote against any nominee for any reason without taking personal cheap shots.



Can anyone doubt these smear campaigns make judicial appointments less attractive to some — perhaps many — highly qualified people, who tend to have alternative careers available, almost invariably at far higher pay?

It is one thing to be willing to sacrifice income to serve your country. It is something else to have a lifetime reputation for integrity, honesty and dignity destroyed by noisy and shameless politicians playing to special interests.

“All questions are legitimate,” declared Sen, Charles Schumer, New York Democrat and one of the most shameless of all. “What is your view on Roe v. Wade? What is your view on gay ‘marriage’? They are going to try to get away with the idea that we’re not going to know their views. But that’s not going to work this time.”

“You cannot ask a judge to prejudge a specific matter,” was the very different view of Sen. Jeff Sessions, Alabama Republican and a former judge himself.

Orrin Hatch, Utah Republican, put it best: “Any member of the committee can ask whatever they want, no matter how stupid. But I don’t think nominees have to answer certain questions. They don’t have to answer questions about how they are going to vote in the future. They don’t have to answer stupid questions. They don’t have to answer argumentative cases.”

There is no need for any nominee to demean himself and the high office for which he has been nominated to try to appease politicians who are likely to vote against him anyway.

A justice confirmed to the Supreme Court by a narrow vote in the Senate will have just as much authority as a justice confirmed unanimously.

No matter who is nominated to fill the Supreme Court vacancy created by Justice Sandra Day O’Connor’s retirement or the outcome of the confirmation vote, something urgently needs to be done to stop Senate confirmation hearings from being scenes of public humiliations that can deprive Americans of the services of highly qualified individuals.

We certainly need better quality people than most of those now on the Supreme Court. Putting nominees through a cheap hazing circus on TV is not the way to get such people.

It will of course always be possible to get warm bodies to put on the judicial benches. But the Supreme Court already has too many warm bodies without much else besides big egos and an ear for fashionable rhetoric. Such people are too easily corrupted by flattery from the media and the intelligentsia.

Cynics say every man has his price but some of these prices are remarkably cheap — especially for betraying the Constitution of the United States.

Thomas Sowell is a nationally syndicated columnist.

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