Tag: judges

Big Government Causes Hyper-Partisanship in the Judicial Appointment Process

Earlier this year, the Georgetown Journal of Law & Public Policy hosted a symposium on “Hyper-Partisanship and the Law.” The journal editors graciously invited me to join an august panel on partisanship in the judiciary that included George Mason University Law School’s Todd Zywicki and the U.S. Chamber of Commerce’s Rachel Brand. (Brand ran the DOJ’s Office of Legal Policy, which is responsible for vetting and advising the president on judicial nominees, from 2005 to 2007.)

The symposium video isn’t available online, but the participants were invited to publish their presentations in this summer’s issue of the GJLPP. Zywicki has already blogged about his paper, “The Senate and Hyper-Partisanship: Would the Constitution Look Different if the Framers Had Known that Senators Would Be Elected in Partisan Elections?”

My (short) article is entitled “Big Government Causes Partisanship in Judicial Nominations.” Here’s an excerpt:

In 1962, Byron White’s hearing lasted 15 minutes and consisted of three questions.  Can you imagine that happening now?  Most district court nominees would take that deal.  Is it because of TV and the media and the instant sound bite and the new media with the Internet and social networking and all the rest of it?  Is it because the issues have gotten more ideologically divisive?  I think the answer isn’t really any of these.  It isn’t that there’s been a corruption of the confirmation process, the nomination process, presidential or senatorial rhetoric, or the use of filibusters.  It’s a relatively new development but one that’s part and parcel of a much larger problem: constitutional corruption.

As government has grown, so have the laws and regulations over which the Court has power.  The Court’s power has grown commensurate with the power of Congress, because all of a sudden it’s declaring what Congress can do with its great powers and what kind of new rights will be recognized.   As we have gone down the wrong jurisprudential track since the New Deal, judges all of a sudden have more power behind them and the opportunity to really change the direction of public policy more than they ever did.

Read the whole thing (not yet in the final format). My presentation largely tracked some of the points Roger Pilon made in his seminal (and now decade-old) paper, “How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees.” You should read that too.

California’s Water-Liu

Over the last year and a half, I’ve blogged many times about Berkeley law professor Goodwin Liu, the controversial nominee to the Ninth Circuit, the federal appellate court with jurisdiction over the western states and territories.  Here’s an op-ed I published in the wake of that nomination – which happened to coincide with Obamacare’s enactment.  And here’s a taste of what I wrote when Republicans filibustered Liu, which ultimately led him to withdraw:

I’m not going to weigh in here on the issue of whether judicial nominees ought to be filibustered in general … but if ever there were an “extraordinary circumstance” fitting into the Gang of 14 agreement that broke the judicial logjam under President Bush, this is it.

As I blogged last year, Liu is, without exaggeration, the most radical nominee to any position that President Obama has made. He believes in constitutional positive rights — not that the welfare state and all its accompanying entitlements (and then some) are a good idea, but that they are constitutionally required

Well, today Liu finally reached the bench, being confirmed to the California Supreme Court.  This is an unfortunate development for the citizens of California, to be sure, but, as I tweeted earlier today, at least Liu’s damage will be limited to that irredeemable state. 

Of course, a state supreme court justice may be an attractive choice for appointment to the U.S. Supreme Court, particularly given that we haven’t had a state jurist appointed since President Reagan tapped Sandra Day O’Connor in 1981.  And Liu would be the first Asian-American on the highest court in the land, which could further tempt Barack Obama or a future Democratic president to select him.  Such are the stakes for every presidential election until the 40-year-old Liu is deemed too old for elevation.

How Judges Protect Liberty

In my Encyclopedia Britannica column this week, I take a look at “the responsibility of judges to strike down laws, regulations, and executive and legislative actions that exceed the authorized powers of government, violate individual rights, or fail to adhere to the rules of due process.”

Certainly they don’t always live up to those expectations, as Robert A. Levy and William Mellor wrote in The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom

The column might have been more timely last summer, when Judge Andrew Napolitano concluded one of his Freedom Watch programs on the Fox Business Channel by hailing four federal judges who had courageously and correctly struck down state and federal laws:

  • Judge Martin L. C. Feldman, who blocked President Obama’s moratorium on oil drilling in the Gulf of Mexico;
  • Judge Susan Bolton, who blocked Arizona’s restrictive immigration law;
  • Judge Henry Hudson, who refused to dismiss Virginia’s challenge to the health care mandate; and
  • Judge Vaughn Walker, who struck down California’s Proposition 8 banning gay marriage.

That was a good summer for judicial protection of liberty. But as I note, there have been more examples this year, reminding us of James Madison’s predictions that independent judges would be “an impenetrable bulwark against every assumption of power in the legislative or executive.”