GOP Politics Stalls Judicial Nominations

The quiz topic is “judicial activism,” the disease that Senate Republicans say has infected the federal courts.

Choose which of the following judges have been pilloried for being activists:

1. U.S. District Judge Thelton Henderson of San Francisco, who briefly struck down Proposition 209, the voter initiative forbidding affirmative action by state and local agencies.

2. U.S. District Judge Michael Hogan of Eugene, Ore., who struck down that state’s voter initiative allowing assisted suicide for the terminally ill.

3. U.S. District Judge Harold Baer Jr. of New York, a Clinton appointee who last year threw out drug evidence on the grounds that police had illegally searched a car.

4. U.S. District Judge John Sprizzo of New York, a Ronald Reagan appointee who earlier this year threw out the charges against two men who repeatedly blocked the entrance to an abortion clinic on the grounds they acted out of conscience-driven belief.

The answer is Nos. 1 and 3.

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After his decision in the Proposition 209 case, Henderson was held up to ridicule as the “most glaring example” of a judicial activist by, among others, Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) and Sen. John Ashcroft (R-Mo.), who chaired Senate hearings last summer on the problem of judicial activism.

Baer was threatened with impeachment for his decision in the drug case. He also figured briefly in the 1996 election campaign as a target for attacks on President Clinton. Republican presidential candidate Bob Dole announced a judicial “hall of shame” with Baer first on the list.

By contrast, Hogan and Sprizzo, whose decisions have pleased conservatives, have scarcely been mentioned.

After taking control of the Senate in 1995, the Republicans pledged to screen new judges for signs of potential “activism.” This new filtering process has caught up scores of Clinton’s nominees, and it has led to unprecedented delays in filling judgeships.

In the past two years, only 56 of Clinton’s nominees have been confirmed by the Senate--compared with 122 judges confirmed by the Democrat-controlled Senate in the final two years of George Bush’s presidency.

As a result, about 10% of the federal judgeships are vacant. So while none of Clinton’s nominees has been voted down, a great many have lingered in limbo.

The courts in California and the West Coast have felt the impact. The U.S. 9th Circuit Court of Appeals is supposed to have 28 members, but now has only 18.

UC Berkeley law professor William A. Fletcher, nominated to the 9th Circuit in April 1995, has yet to come to a vote in the Senate. The same is true for 9th Circuit nominees Richard A. Paez of Los Angeles and Margaret McKeown of Washington state, who have been awaiting a final vote since early in 1996. Los Angeles attorney Margaret M. Morrow, nominated for a district judgeship, has been in limbo since May of 1996.

No wonder then that more than a few legal experts say the Republicans’ talk about judicial activism has more to do with politics than principle.

“This has become totally political,” said Bruce Fein, a conservative and former Reagan administration attorney who testified during the Senate hearings on activism. “Judicial activism has become just an epithet for criticizing decisions you don’t like.”

While the definitions vary, most lawyers refer to an activist decision as a judicial ruling that invalidates a law passed by the people or their elected representatives.

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By that standard, Henderson’s decision striking down Prop. 209 would qualify, as would Hogan’s decision in Oregon. Both were overturned, however, by three-judge panels of the 9th Circuit Court.

In recent years, the conservative-led Supreme Court has knocked down its share of laws, but without drawing much criticism for its activism.

For example, the justices in 1989 invalidated a Richmond, Va., ordinance that set aside 30% of its city contract dollars for minority-owned firms. Two years ago, the court overturned decisions by state lawmakers in Georgia, North Carolina and Texas to draw a few electoral districts with black majorities.

In June, the conservative majority, on a 5-4 vote, struck down part of the Brady Act requiring background checks on new buyers of handguns. All these might have been labeled “activist” decisions, but they have escaped the ridicule heaped upon judges whose decisions please liberals.

Vanderbilt University law professor Barry Friedman, who has studied the history of popular attacks on federal court decisions, said at the hearing that attacks “on the judiciary are invariably political. By political, I mean to say that no matter what members of Congress or the executive branch has said about why they are threatening judicial independence, they are doing it because they do not like the way judges are deciding cases.”

For example, when President Franklin D. Roosevelt proposed to expand the membership of the Supreme Court in 1937, he said he was concerned its aging jurists were overworked. It was obvious to all, however, that he was in truth angry about their rulings striking down his New Deal laws.

Friedman, in his testimony, noted one point of curiosity: “Why all the fuss now” about liberal judicial activism, given that a single federal judge such as Henderson cannot ultimately strike down laws? Such decisions are inevitably appealed to the Supreme Court, which regardless of one’s views, is “certainly not a radical-liberal one,” he said.

The recurring dispute has divided the Supreme Court for most of this century.

In the 1920s and ‘30s, the high court had a conservative majority that wielded its power in an activist manner. It struck down a series of state and federal laws that restricted child labor, established minimum wages or fixed maximum work hours on the grounds that the Constitution did not allow the government to interfere in the private workplace.

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The dissenting liberals, notably Justices Oliver Wendell Holmes and Louis D. Brandeis, espoused a policy of judicial restraint.

After 1937, a liberal majority took control and adopted a hands-off approach to matters of business and labor. From then on, the high court upheld FDR’s far-reaching laws regulating the economy. The conservatives, now in dissent, moaned, “As for the Constitution, it is gone.”

From roughly 1950 to 1980, liberal jurists such as Chief Justice Earl Warren and Justices William J. Brennan and Thurgood Marshall formed an activist majority, striking down Southern segregation laws, ordering cross-town busing for school desegregation, throwing out the laws forbidding abortion, abolishing official prayers in the public schools and, for a brief time, invalidating the death penalty. Conservatives argued for restraint.

Now, with the liberal activists routed, conservatives who preach judicial restraint control the Supreme Court. They are led by Chief Justice William H. Rehnquist and Justice Antonin Scalia, but even the court’s two Democratic appointees, Justices Ruth Bader Ginsburg and Stephen G. Breyer, came to the high court with reputations for caution and restraint.

The dispute over assisted suicide in the last court term illustrates the point.

Judge Stephen Reinhardt of Los Angeles, an old-fashioned liberal who is not shy about wielding judicial power, had written an opinion for the 9th Circuit striking down the state laws that make it a crime to give lethal medication to a terminally ill person who wishes to die.

His decision relied on the high court’s precedents on abortion. If the Constitution protects the privacy right to make such a personal decision, how could a dying person be denied the same right?

But all nine justices voted to overturn Reinhardt’s decision, not because they opposed the notion of assisted suicide as such, but because they believed that this legal decision should be made by the people and their lawmakers, not by federal judges. It was a triumph for judicial restraint.

For Fein, the outcome reinforces his view that now is not the time to fret about rampant judicial activism.

“Under Reagan and Bush, we basically won,” he said. “We re-created the courts into a far more moderate, even conservative institution.”