The
obstruction of the judicial confirmation process, led by Candidate
Kerrys mentor and prime supporter, Senator Kennedy, is a political
maneuver designed to threaten the independence of the judiciary...
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The
Kerry-Kennedy Court: Tribe and Tested
Nine
seats have been occupied for nearly a decade now. But sometime after
January 20th, several seats on the Supreme Court will surely become
vacant.
The
list of possible retirements that could occur during the next four
years is long by Supreme Court standards, and includes a majority
of the current Court. Based on age alone, there are four likely
departures, all of whom are in their 70s or 80s: Chief Justice William
Rehnquist, 79, and Justices John Paul Stevens, 84, Sandra Day OConnor,
74, and Ruth Bader Ginsburg, 71. Add to that list Justice Antonin
Scalia, who many commentators believe is frustrated with the cloistered
nature of Supreme Court life, and the distinct possibility exists
that five justices will hang up their robes during the next presidential
term.
All
of this is a long way of saying that whoever wins the presidential
election in November will likely control the future of the Supreme
Court for some time to come. After all, the stability and longevity
of the Rehnquist Court as traditionally named for the current
Chief Justice is unheard of. You have to go back more than
180 years, to the period between 1812 and 1823, to find the only
other time when the highest court in the land retained all of the
same members for more than 10 years. Thus, the power to shift the
balance among the nine final arbiters of the "supreme Law of
the Land" will likely be the most important privilege won in
November.
President
Bush has already made it abundantly clear how he would select his
nominees for lifetime seats on the High Court. Based on his statements
and nearly four years of appointments to the federal district and
circuit courts, it is safe to assume the President would fill any
vacancies with distinguished jurists committed to an independent
judiciary that would uphold the rule of law and the plain commands
of the U.S. Constitution. Time and time again President Bush has
proven that his choices live up to the highest standards of scholarship
and integrity as measured by the American Bar Association,
which has routinely given the Presidents court nominees qualified
and highly qualified ratings.
But
who would John Kerry pick?
Well,
like many of Senator Kerrys positions, that depends upon which
conflicting statement you are supposed to believe.
In
his book A Call to Service: My Vision For a Better America,
published last October, Senator Kerry wrote, "I dont
like the idea of using litmus tests for judicial nominees."
That statement echoed Senator Kerrys concern, voiced nearly
two decades ago, that our courts could be "threatened
by the appointment of a judiciary which is not independent
through the systematic targeting of any judicial nominee who does
not meet the rigid requirements of litmus tests." In other
words, we are led to believe that Senator Kerry would appoint judges
as President Bush has based upon their legal distinction
and principled integrity, rather than some predisposition to decide
cases in the "politically correct" way.
But,
typically, thats not all Senator Kerry has said on this subject.
In the same month his book was published, Candidate Kerry changed
his tune about the appointment of judges when he told a campaign
audience at the University of Plymouth that "I am the only
candidate running who has said point blank: Im not going to
appoint anyone to the Supreme Court who does not support the right
of privacy and [a] womans right to choose, Roe v. Wade.
And if you want to call it a litmus test, go ahead and call it that."
And even in the very book where he promised not to use litmus tests
to pack the courts, Candidate Kerry qualified that pledge by writing,
"I will filibuster any Supreme Court nominee who would turn
back the clock on the right to choose, on civil rights and individual
liberties, on the laws protecting workers and the environment."
This
latter Candidate Kerry is the one judicial nominees to our federal
courts have come to know all too well over the past couple years,
as Senator Kerry has teamed up with his fellow Senator from Massachusetts,
Edward Kennedy, in filibustering multiple "well-qualified"
nominees to the federal bench. Those filibusters are not only unprecedented,
but are holding the federal judiciary, itself, hostage, as multiple
judicial nominations languish on the Senate floor for years awaiting
the constitutionally required up-or-down confirmation votes.
Lets
be clear. The obstruction of the judicial confirmation process,
led by Candidate Kerrys mentor and prime supporter, Senator
Kennedy, is a political maneuver designed to threaten the independence
of the judiciary and to stack the courts with judges willing to
use whatever "interpretative" means are necessary to achieve
their own ideological ends. (That this is the primary motivation
for the Democratic obstruction of the judicial confirmation process
became all the clearer when, through a Memorandum, it was exposed
that Senator Kennedys office recommended delaying a judges
confirmation because it was feared the nominee would vote the "wrong"
way in two high-profile affirmative action cases.) Candidate Kerry
is a willing co-conspirator in Senator Kennedys judicial confirmation
obstruction strategy and for good reason. After all, the
more nominees that can be stalled until January, the more seats
on the federal bench there will be to fill if he is elected President.
Thus,
gone is the "distinguished" Senator Kerry of 1986, who
supported the nomination of Justice Antonin Scalia to the Supreme
Court, "not because he is liberal or conservative, but because
he is a legal scholar of distinction, of principle, and of integrity."
Gone is the Senator Kerry who understood that, "[w]hile I may
often disagree with [a judges] views," it is far more
important to "respect [the judge] as a jurist and a legal scholar"
who "will make a positive contribution" to the judiciary
and the administration of justice.
Candidate
Kerry has made it all too clear who he will choose to pack the Supreme
Court any judge who is willing to tow the political party
line, anyone who agrees with Candidate Kerry.
Heading
up this list has to be Harvard Law Professor Laurence Tribe, whose
constitutional scholarship demonstrates a willingness to twist the
Constitution in order to reach liberal results. And, with rumors
circulating that the Chief Justices seat is the most likely
to be vacated first, President Kerry should that come to
be might attempt to steer the Supreme Court decidedly to
the left by making it the Tribe Court for the foreseeable future.
In
fact, the name given to the new High Court may signify far more
than its new Chief, as the Kerry White House will go in search of
a "tribe" of activist justices to fill the Courts
vacancies, testing each nominee for ideological disqualifications.
Legal acumen and ethical integrity would be but afterthoughts in
the search for appropriate jurists, and the independence of the
third branch of government would be sacrificed at the altar of politically
motivated results.
Thus,
in November, the voters will determine far more than who lives in
the White House. They will determine, indirectly, who sits in the
nine seats on bench of the highest court in the land. Its
a choice between judicial restraint and judicial activism. Its
a choice between what is actually written in the Constitution and
what an unelected judge believes should be written there. And, it
could be a choice between a Court made up of justices who are tried
and true or just Tribe and litmus tested.
[Posted
May 6, 2004]
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