Free Congress © Commentary

Hijacking the Constitution

By Thomas L. Jipping
June 26, 2001

The measure of President Bush's commitment to appointing the judges America needs is two-fold: the nominees he sends to the Senate and the steps he takes to ensure their final appointment.

His nominees are what he promised, those who know the difference between interpreting and making law. As judicial vacancies mount and Senate Democrats craft one confirmation obstruction scheme after another, however, Mr. Bush must take the second step. The American people need to know what's t stake and the tactics being used to block appointment of judges who will follow the law.

Senate Democrats and their leftist allies claim as justification for their obstruction campaign the need for some kind of "balance" on the Federal courts. The Constitution, in giving the power to nominate and appoint judges to the President, calls for no such thing. Democrats, of course, only discovered the need for balance upon President Bush's election, and the argument doesn't even fly on the numbers, since Bill Clinton just finished appointing 374 Federal judges.

Looking specifically at the U.S. Court of Appeals for the Ninth Circuit, which covers nine western states, reveals what is going on here. The Ninth Circuit is legendary or, should I say, notorious. This is the court that said the Federal Controlled Substances Act contains an exception for so-called medically necessary use of marijuana (anyone can read that it doesn't and the Supreme Court unanimously agreed), that landlords must rent to shacking-up couples despite their religious objections, that the Constitution contains rights to assisted suicide and to conduct government business in foreign languages, and that cities can discriminate against religious groups in opening their parks to community events.

In its previous four terms, the U.S. Supreme Court reversed the Ninth Circuit in 63 of 73 cases it reviewed. The sheer number of disturbing decisions the Supreme Court was compelled to address, and that astounding 86 percent reversal rate, dwarf figures from any other circuit and demonstrate that the Ninth Circuit is far outside the mainstream.

These and many other activist decisions did not result from any "balance" on the Ninth Circuit. In fact, 18 of the 25 full-time judges on that court, or a whopping 72 percent, are Democrat appointees. Fourteen of them, or 56 percent of the total, are Clinton appointees. This is perhaps the most unbalanced appeals court in America and these crazy decisions prove it.

If Senate Democrats really wanted balance on the Ninth Circuit, they would confirm President Bush's Ninth Circuit nominees. Instead, left-wing California Sen. Barbara Boxer succeeded in preventing the nomination of Congressman Chris Cox and is now threatening to block other nominees as well.

But the obstruction campaign goes even further.

A Federal law actually requires what might be called balance. Hawaii's two Senators, Democrats Daniel Akaka and Daniel Inouye, introduced the Fairness in Judiciary Appointments Act of 1997, because there had not been a Hawaiian in full-time service on the Ninth Circuit since 1984. The law requires that each state in a judicial circuit be represented by at least one judge on that court. Sen. Akaka stressed that this representation was necessary to "add to the credibility and legitimacy of the Federal appellate courts and the decisions they render."

(Just for the record, courts are not and must not be treated as representative institutions. Representation first creates expectation and then entitlement of results by the groups supposedly being represented. That's the best way to destroy the rule of law.)

But this law is on the books, and it was Hawaii's Senators who put it there. Hawaii is today one of only two states - the other is North Carolina - not represented on their respective circuits and President Bush has nominated individuals from each of them.

President Bush has, for example, nominated Richard Clifton of Hawaii to fill one of the three vacancies on the Ninth Circuit. Mr. Clifton has practiced law in Hawaii for 25 years and has taught at the University of Hawaii School of Law. A specialist in business litigation, he is listed in "The Best Lawyers in America" as one of the 18 finest lawyers in that field in Hawaii.

Though there has not been a Hawaiian in full-time service on the Ninth Circuit in 17 years, and though their legislation requires there be one, Sens. Akaka and Inouye now refuse to back Mr. Clifton's nomination. Inouye says he opposes the nominee because he was not "in the loop" enough in the nominee's selection.

Forget all these fake excuses. If these Senators were concerned about balance on the Ninth Circuit, they would support Mr. Clifton's nomination. If they were concerned that Hawaii be represented on the Ninth Circuit, they would support Mr. Clifton's nomination. The truth is that these Senators want someone else appointed. They want President Bush instead to re-submit Bill Clinton's far more liberal nominee, someone the Senate chose not to confirm.

So we arrive again at the same bottom line. The Democrat Senate is trying to change the Constitution's rules and highjack the appointment of judges. Don't be fooled by the gimmick du jour; that's just a cover up for a hostile takeover of the judicial selection process. It's up to Senate Republicans and the Bush Administration, who say America needs judges who will simply follow the law, to expose these tactics and restore some Constitutional balance before it's too late.

Thomas L. Jipping is Vice-President for Legal Policy at the Free Congress Foundation.

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