Bench Press

Tuesday's World Events   —   Posted on April 14, 2009

(by Edward Lee Pitts, WASHINGTON, D.C. – … [Democratic Sen. Amy] Klobuchar lamented the fact that Republicans on the Senate Judiciary Committee had boycotted the question-and-answer session of President Barack Obama’s first judicial nominee. They said Democrats had not given them enough time to examine the lengthy record of controversial appeals-court nominee David Hamilton.

In the GOP’s absence, Democrats lobbed easy questions to Hamilton, while a packed hearing room mostly nodded in approval.

A good time was had by all-except the Republicans-who in going AWOL may have silenced any tough questions concerning Hamilton’s judicial philosophy but spoke volumes about the GOP’s strategy in combating what many expect to be an aggressive move by Obama’s team to remake the courts in a more liberal image. Republicans may have fired the first shot in the inevitable nomination war, but the question remains: Will any GOP tactic when it comes to judges be enough in the face of a near Democratic chokehold on the Senate?

Obama created a firestorm among conservative legal observers when, during the campaign, he said he wanted to pick judges with the “heart” and “empathy” needed to walk in someone else’s shoes. Conservative legal experts sounded the alarm that this meant Obama wants judges to legislate from the bench. They warned this would lead to activist judges who, believing in a changing Constitution, would use the power of the courts to legislate based on personal beliefs and not the rule of law.

This could remake the courts into a “ruling oligarchy of unelected judges who view themselves as smarter than everyone else” and who indulge in their own policy preferences to force sweeping changes in accepted laws just because they think it is good for us, argues Jordan Lorence, a senior counsel with the Alliance Defense Fund.

Conservatives say Obama missed an opportunity to usher in a more conciliatory start to the often contentious judicial nominating process by naming Hamilton. A current U.S. district judge in Indiana, Hamilton struck down an informed-consent law that provided women with medical counseling information about abortion’s risks and alternatives. Hamilton also ruled against the use of prayer in the Indiana legislature, citing that the daily prayer’s frequent invoking of Jesus Christ and other Christian themes violated the Constitution by showing preference for a particular religion.

The Chicago-based 7th U.S. Circuit Court of Appeals reversed both decisions. Hamilton would take a seat on that same appeals court if confirmed by the Senate.

In nominating Hamilton, Obama ignored a letter from all 42 Republican senators, asking the president to get the process off to a bipartisan start by renominating several of President George W. Bush’s blocked nominees. Bush renominated two of President Bill Clinton’s stalled choices soon after taking office.

But Tom Fitton with Judicial Watch predicts more Hamilton-like nominees will come down the judicial pike.

In response, Senate Republicans are expected to be aggressive in the judicial hearings that they actually attend, making sure to slow down the process long enough so that voters hear adequate debate about each potential judge’s background. Sen. Arlen Specter, R-Pa., the ranking Republican on the Judiciary Committee, said holding the Hamilton hearing just two weeks after Obama named him did not give Republicans enough time to examine Hamilton’s more than 1,000 opinions and rulings that, as Specter pointed out, could be stacked four feet high. Republicans hope their boycott will prompt Democrats to allow more prep time for future nominees.

GOP senators had also hoped to use the “blue slip” tradition, which holds that no judicial nominee can come before the Senate without agreement (in the form of a blue slip) from both senators representing that nominee’s state. Republicans have at least one senator in 27 states. But the two GOP senators from Texas are already losing a battle to hold onto this privilege as the White House recently signaled its intention to include that state’s 12 House Democrats in the screening process.

Whatever battle plan Republicans employ, most agree that the nation’s courts are headed toward an inevitable tilt to the left. It is a matter of simple math as Democrats can boast a strong majority in the Senate-holding at least 58 seats and needing just two Republican votes to overcome any filibuster. With Hamilton’s nomination, Democrats already have one Republican on board-fellow Hoosier GOP Sen. Richard Lugar, who disappointed many conservatives by endorsing Hamilton. (The Judiciary Committee is expected to take up the nomination again after the Easter recess.)

The ultimate hope among conservative lawmakers is that if Obama overreaches in his judicial picks, then Democrats may face a backlash in the polls during the 2010 Senate races. Such political costs could force Obama to make marginally more moderate picks in future openings, says Ed Whelan, president of the Ethics and Public Policy Center.

The stakes are undoubtedly high. As the often used phrase “let the courts decide” makes clear, the judicial branch is usually the final arbiter on such issues as religious liberties, abortion, gay marriage, gun laws, pornography, and the fate of suspected terrorists in the ongoing war on terror. Liberal-minded courts could trump state laws like amendments defining marriage as a union between a man and a woman and parental consent laws on abortion. Judges in the activist mold could also jeopardize the ability of Christian organizations to worship in schools on the weekends or to gather at state and university campuses.

“You can win a lot of things in the courtroom that you can’t win at the ballot box,” says conservative court blogger William Smith.

Furthermore, as Obama continues to peddle big-government answers to everything from education to health care, he will simultaneously be stacking the court with judges more inclined to share his worldview and uphold any expanded government measures when the new policies are challenged in court.

With Justice John Paul Stevens turning 89 this month and with three other justices older than 70 (including Justice Ruth Bader Ginsburg, who was hospitalized this year for cancer treatments), Obama could appoint as many as three new members to the Supreme Court, predicts Curt Levey of the Committee for Justice.

But Obama, who may face retribution from his former Republican colleagues in the Senate for opposing both of Bush’s two Supreme Court picks, could dramatically shift the high court if elected to a second term, adds Levey. That is when conservative Justice Antonin Scalia and crucial moderate swing-vote Justice Anthony Kennedy may retire.

Despite this real potential of looming Supreme Court confirmation wars, the Heritage Foundation’s Robert Alt warns that Obama could further alter the legal landscape through appointments to the influential lower courts. Alt says, since the Supreme Court maintains a small docket, the majority of cases have their final say and laws are approved or rejected in the nation’s appeals courts. Currently there are 15 vacancies on the appellate courts. But congressional Democrats are pushing legislation to expand the federal judiciary-with 14 new appeals court judgeships and 50 district judges. A similar bill died in Congress last year. But Democrats, invigorated by larger congressional majorities and with ownership of the White House where these new judges are ultimately named, are expected to seek the expansion with renewed vigor.

A recent Brookings Institution study predicted that-with expected retirements and current vacancies-Obama will be able to nominate one-third of all appellate court judges during his first term, something it took Bush eight years to accomplish.

This prediction has Alt convinced that Obama’s most lasting legacy will not be changes in health care or education reform or government bailouts-but a remaking of the nation’s judiciary with new judges on benches eager to take a more active role in public policy: “Elections have consequences,” says Alt, “and Obama could end up leaving an enormous mark in a very short period of time.”

Before that happens, conservatives hope that Republicans will come to the next judicial nominating party, this time ready to tango.

Copyright ©2009 WORLD Magazine, April 25, 2009.  Reprinted here April 14th with permission from World Magazine. Visit the website at


On the Role of Judges
Judges are like umpires in baseball or referees in football or basketball. Their role is to see that the rules of court procedures are followed by both sides. Like the ump, they call 'em as they see 'em, according to the facts and law-without regard to which side is popular (no home field advantage), without regard to who is "favored," without regard for what the spectators want, and without regard to whether the judge agrees with the law. (from the American Bar Asociation)

"The role of a judge is to be a neutral interpreter of already established law, not legislator of new law or social policy.  A judge can have his or her own opinions, even strong ones, and still read the law neutrally.  Fundamentally, judges are expected to not bring their personal politics and philosophies to the bench. Judges are expected to read the law in its clear intent and apply it without regard to result. Changing the law should be left to the people and their legislators."  Sean Rushton, Committee for Justice Executive Director, from the

"One of the big confusions in the...Senate fight over the confirmation of judicial nominees is that this is an issue about 'liberal' judges versus 'conservative' judges.  The vastly more important issue is whether people who go into court should expect their cases to be decided on the basis of the law or on the basis of the particular judge's own philosophy...Liberals have rooted for judicial activism because this activism has favored liberal causes and liberal views on such issues as abortion, the death penalty, gay marriage, and racial quotas.  But activism can be used by any judge for any purpose." Thomas Sowell, Hoover Institution

NOTE: Because six members of the Court w[ere] age 69 or older when [Barack Obama was] inaugurated, it's likely that multiple vacancies will occur during [his] administration. This will create a rare opportunity for [him] to alter the direction of the High Court for the next several decades. It's crucial, therefore, to have a president who understands the judiciary's proper role. As Ronald Reagan once noted, "[The Founders] knew that the courts, like the Constitution itself, must not be liberal or conservative." For Reagan and for the Founders, judges were to be selected based on their ability to put political preferences aside and interpret the Constitution and laws based on their original meaning.  Rather than scrutinizing judicial nominees based on their perceived political leanings, the next president should appoint judges who apply the law regardless of their own policy preferences. (from "Misunderstanding the Role of Judges" by Deborah O'Malley)

1) President selects potential candidates, usually with the advice from White House Counsel.

2) President usually interviews or meets with the candidates for the Supreme Court in private. While the public is frequently aware of these meetings, the contents of the meetings are usually not disclosed.  Occasionally, the name of a nominee is unofficially leaked to the press.

3) The White House Counsel or other senior administration official will meet with federal judicial nominees. The president may or may not meet with a federal judicial nominee.

4) President submits the name(s) to the Senate.

5) In some cases, interest groups will run advertisements in favor of or against a nominee, usually at the Supreme Court level. These public relations campaigns are aimed at convincing the public and the Senate to support or oppose the Supreme Court (or federal judicial) nominee.

6) Senate Judiciary Committee holds a committee hearing in which the committee members question the nominee and other witnesses (such as friends and previous co-workers) about the nominee's background and qualifications. These hearings are televised and segments are frequently shown on news programs. All Senators have access to transcripts and tapes of the hearings.  (Before the hearing, both committee staff and the FBI will have completed an extensive background check on the nominee.  This check will ensure that the nominee has paid his taxes, has not been convicted of a serious crime, is a person of good standing in his/her community, etc.)

7) Senate Judiciary Committee, led by the chairperson, holds a vote on whether or not to recommend the nominee for confirmation.

8) Full Senate votes on whether or not to confirm the nominee. A simple majority (51 votes or more) is required. However, filibusters by the minority party can prevent a vote on a judicial nomination from coming to the floor. ...Since it takes 60 votes to cut off a filibuster and no one party has had that many members, it is a powerful tool used by the minority party to block a nomination. Such tactics are often criticized by the majority party as unconstitutional.

9) If the full Senate votes to confirm by 51 votes or more, the nominee is confirmed.

*from "Nominating Federal Judges" Lesson Plan by Rebecca Small, Herndon High School, AP Government Teacher