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Martin Garbus

Martin Garbus

Posted March 18, 2009 | 03:58 PM (EST)

Newt Gingrich Got It Right: The Battle Over the Courts


President Barack Obama's team is continuing the mistakes of prior domestic presidents in his federal judicial selections. He is seeking, as President Clinton did, in the name (and the illusion) of bipartisanship, to nominate experienced moderate judges.

This is a disaster. The Republicans know better and have known better for the last 30 years and that is why for the last three decades we have had conservative domination not only at the Supreme Court level but at the very important federal circuit court level.
Newt Gingrich had it right when even before the beginning of the Reagan presidency he urged the Republicans to use two major qualifications for the appointment of federal nominees. He wanted the nominees very, very young and very conservative. Experience, scholarship, reputation was thrown by the wayside. The Reagan administration nominated as appeals court judges men in the early 30's with little or no legal experience. Most of them were stacked on the Fourth Circuit Court of Appeals which has been, next to the Supreme Court, the most conservative judicial force in the country.

The judges' youth meant that they would be on the court for a very long time and profoundly influence the law for decades. Republicans carried this mantra through when it came to Supreme Court nominees.

Isn't it clear by now that bipartisanship is and always has been an illusion? Clinton's attempt to pacify and work with Republicans did not work. The "kind of signal" that Obama is giving is the wrong one.

Unless Obama's approach is changed, he will set administrative precedent for his Supreme Court nominees. He must learn from the judicial past. This is an area that unfortunately must be contentious - it's too political and important not to be. Merely because "the majesty of the law" is involved does not mean that it's not totally political.