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Subverting the Courts - October 11, 2002

By James L. Hirsen, J.D., Ph.D.
contributor to

"Those who delay or prevent the filling of these vacancies must understand that they are delaying or preventing the administration of justice."
Sen. Patrick Leahy, Congressional Record, April 2, 1998

The senator who made the above statement has apparently just compromised these same principles. He also broke his word.

Patrick Leahy promised 99-years-young Senator Strom Thurmond that before Congress adjourned for midterm elections, a vote on U.S. District Judge Dennis Shedd would be held. Judge Shedd, who once worked for Thurmond, was nominated by the Bush administration for the position of appellate judge in the 4th Judicial Circuit.

Ho-hum. No debate. No consideration of merit. Just another well-qualified judge being denied a constitutionally mandated vote.

If the Democrats, as anticipated, refuse to allow any more Senate Judiciary Committee votes in 2002, Miguel Estrada and Michael McConnell will be shelved along with Shedd until next year. Through the antics of a single Democrat-controlled committee, a full-Senate vote is being denied to other qualified judicial nominees as well.

To put things in perspective, the percentage of nominees confirmed in the first two years of the Clinton administration was double the percentage confirmed so far during Bush's first two years. Since the Dems took control of the Senate in June of 2001, the Judiciary Committee voted 10-9 along party lines to deprive numerous nominees an up-or-down vote on the Senate floor.

The idea that a Senate committee would exercise bad faith to prevent a floor vote on a highly qualified nominee runs counter to the duty that every senator is sworn to uphold. This utter display of arrogance thwarts the constitutional power granted to the president to select jurists for the federal bench.

New York Sen. Charles Schumer, chairman of the Judiciary's Courts Subcommittee, proudly declares that the reason well-qualified judicial nominees are being put on ice is because of an ideological litmus test. Bush's choices are described as out of the mainstream, too extreme, far right-wing, etc. Of course, a host of left-leaning special interest organizations is ready to provide a pretext for the across-the-board barricade being staged by Leahy and his gang of 10.

But if we pull aside the diversionary curtain, we see that there's another agenda behind the schemes. A comprehensive strategy to pack the courts is what's really at work. The goal is to fill judicial slots with would-be accomplices, the likes of which we saw in action on the New Jersey and Florida Supreme Courts.

It is becoming all too clear that the left now views the courts as an enormous source of power, a type of legislative power minus any accountability, hassle or potentially unfavorable outcome that an election process may bring.

Lawsuits kept the polls open in Michigan and Missouri past the point where they should have been closed, and almost allowed Al Gore to litigate his way into the White House. The High Courts of New Jersey and Florida both chose to engage in judicial malpractice, ignoring the clear, simple language of their respective state legislatures and simply ruling by fiat. Now it is being reported that, courtesy of the left, thousands of lawyers will be ready to seek court intervention in the upcoming elections should any "irregularities" happen to take place.

Judge Robert Bork, whose name became a verb following a failed nomination ordeal, warned us that judges who are unrestrained by interpretive principle will eventually have no principles.

A maxim bears upon those who wear black robes and occupy seats on the bench, whether the law in question is an ordinance passed by a city council, a statute enacted by a state legislature or the Constitution itself: When clear, apply the law; if interpretation is necessary, do so by looking to the intent of the law's author.

The kinds of nominees that conservatives would like to see in America's courtrooms believe, by and large, in this maxim. Such judges, if appointed, would do their jobs. They would not bow to convention, public opinion or political pressure.

This would be unacceptable to those members of the Democratic Party who seek to extend their range of power to encompass the judicial branch of government.

Reproduced with the permission of . All rights reserved

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James L. Hirsen, J.D., Ph.D.

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