The new year brings a new president and a new Congress. It will also bring new judges into the federal judiciary at all levels, very likely including the U.S. Supreme Court.
The Independent Women’s Forum is preparing for many battles as the President and 107th Congress turn their attention to judicial nominations. If you think the 2000 election was controversial and contentious, just wait ’til a Supreme Court seat becomes vacant!
Indeed, if there is any lesson from Election 2000, it is that judges are potentially the most powerful actors in the U.S. system of government. How judges should properly exercise their power is a point of radical and crucial disagreement in America today. On either side of the ideological schism stand diametrically opposed views of judicial power: activism vs. restraint.
“Activist” judges believe they are not bound by the letter of the law but instead may fashion their opinions and orders to “do justice” as they see fit. As Al Gore stated during the campaign: “Each new generation has to search for the deeper meaning of the Constitution, breathe life into it.”
“Restrained” or “strict constructionist” judges feel obliged to interpret the law only and not attempt to shape it in order to reach a preferred result. As George W. Bush put it, “The Constitution should be interpreted for what it is, what it says, not for what somebody hopes it says.”
Proponents of judicial activism believe that race, class, and gender should be used, not only to select judges but also to determine case outcomes. Those who endorse judicial restraint, on the other hand, reject the idea that any judge should or would allow such factors (or worse, his or her personal background) to dictate legal results.
The clash of activism vs. restraint is at the center of the judicial nomination battles of the past-and the future. Those who believe judges should make law and “do justice” have a keen interest in the personal beliefs and politics of judicial nominees. They support candidates who agree with them on political issues and oppose candidates who they feel are not in accord with their political beliefs.
In effect, because one side regards judges as lawmakers, every judicial nomination tends to become a mini-election. Candidates are assessed not for their legal competence and unbiased judicial temperament, but for which political side they are likely to favor in cases that may come before them.
Unlike a regular elected office, the “winner” of a federal judicial appointment gains a job for life. Life can last a long time. Still active today are two judges appointed by the Kennedy and Johnson administrations, almost 40 years ago! Clinton administration appointees now constitute 46.6 percent of the active federal judiciary, outnumbering the combined totals of active Reagan and Bush appointees.
Today, as the Clinton administration ends, there are about 66 empty federal court seats. The Republican-majority Senate allowed 37 Clinton nominations (including 5 put forward very late in the session) to expire at the end of the 2000 session. (For comparison, at the end of the Bush administration in 1993, the then Democrat-controlled Senate allowed 59 pending Bush nominations to expire among a total of 110 federal judicial vacancies.)
The new administration will nominate judges to fill the current 66 open seats, as well as others that continually arise as judges retire, resign, die, are promoted, or (in very rare cases) are removed. Because of the enormous power a federal judge may wield, and because they serve for life, long after the president who appointed them is gone, both parties have a great stake in putting their stamp on the federal judiciary.
In this and the coming years, federal judicial nominations will be closely watched and fiercely contested by all sides. The Independent Women’s Forum, as always, will be ready to defend and promote the Rule of Law against the Rule of Politically Motivated Judges.