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Politics And The Judiciary Prize

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During the Civil War and Reconstruction era -- best described as our "Second American Revolution" -- the political parties marched in virtual lockstep, in consistent, rigid opposition to the other. Democrats steadfastly resisted the Republicans' organic program for a new nation, including the Homestead Act, the land-grant college program, a protective tariff, a trans-continental railroad and other internal improvements, a national currency, and a re-ordering of judicial power.

Party discipline soon weakened, and legislators again comfortably crossed party lines. Even at the New Deal's high point, the Republican minority, after opposing many of the details, often supported major reforms, such as Social Security. More recently, in the mid-1960s, conservative Midwestern Republicans helped break filibusters and the obstructionist tactics of conservative southern Democrats -- many still mired in "lost cause" nostalgia.

We have now regressed. Rarely in our history has partisanship been more narrow and rigid. The Republican Party today is bent on an obstructionist, anti-Obama posture. Republicans offer no counter-proposals; our vaunted "system" is dysfunctional. Party comity and bi-partisanship are at a low ebb. Where are you, Everett Dirksen, when we need you?

The opposition's decision to stall and oppose President Obama's judicial nominations is covered in irony and hypocrisy, and further draws into question the majority's ability to govern.

Political majorities throughout our history have regarded the judiciary as a desirable prize. Thomas Jefferson had little opportunity to "pack" the Supreme Court, but he and his successors reshaped the judicial branch rather significantly from its Federalist origins in 1789.

Abraham Lincoln in 1862 told Congress he would not make any Supreme Court nominations until Congress re-adjusted the boundaries of the circuits -- then a primary requisite was that a nominee had to be from that area. Five of the then-nine circuits consisted of slave states. Once the boundaries were re-drawn, and new judges appointees by 1869, the South found itself only with one Circuit, exclusively consisting of old Confederate states. The Republican Party had its prize and its nominees dominated the federal judiciary for decades. And so for the Democrats when Franklin D. Roosevelt named 8 Supreme Court Justices.

Ronald Reagan's presidency began a concerted Republican campaign to capture the judiciary as its own prize as the political parties always have commonly regarded the judicial branch. Democrats passively accepted most Reagan choices until he selected the ultra-conservative Robert Bork, who stirred strong emotions across the political spectrum. Bork's views offered a rallying cry for those who blamed the judiciary for progressive advances on race, women, civil rights, and federalism, ones they ardently opposed. Bork's equally-committed opponents viewed his judicial philosophy as mere scholarly veneer, masking his commitment to reverse prevailing ideas.

Today's arena for judicial nominations is the Bork-battleground writ large. Words and phrases are twisted to become terribly-distorted battle slogans of "judicial activism," "originalism," and "judicial restraint." The nominee's life is parsed, and affiliations are closely scrutinized, desperate to find links to the ACLU, the Ku Klux Klan, or Planned Parenthood. The opposition is loath to cede anything.

Nomination hearings are thinly-disguised burlesque. Most questions involve the nominee's stand on the abortion precedents. The nominees then find myriad ways to deflect comment on such questions. Has anybody ever considered asking the nominees what they think of John Marshall's great rulings which remain basic to American law today? In the famous prep session for nominees, they probably do not review such material. During John Roberts's recent hearing, some reference was made of his clerkship with William Rehnquist, but no one asked about his clerkship with Henry Friendly, an important, influential US Circuit justice. The confirmation hearings are a burlesque; as for probing a nominee's judicial philosophy, they are nothing but sham.

The recent political salvoes and maneuvers to thwart President Barack Obama's nomination of District Judge David Hamilton to the 7th Circuit Court of Appeals offers a preview of coming attractions for judicial nominations. Hamilton probably is representative of most judges, working on a day-to-day basis, often with unspectacular cases and decision. The ABA endorsed Hamilton as "well-qualified," and he won praise from Indiana's senators, Evan Bayh (D) and Richard Lugar (R).

"I'm at a loss to think that we could have someone of a greater ideological nature than Judge Hamilton," retorted the ranking Republican on the Senate Judiciary Committee, Sen. Jefferson Beauregard Sessions, III (R-AL), who likes to be called Jeff when he is on the national stage. He attacked Hamilton's views on abortion, enough to hurl the charge of "activism," but Sessions zeroed in on a 2005 ruling that the Indiana legislature had breached First Amendment requirements for separation of church and state. Sessions found a spark for a filibuster and the predictable ideological firestorm.

Hamilton had ruled against the legislature's lopsided use of Christian clergy, who delivered the invocation 41 times, while one was allotted to a rabbi and another to a Muslim cleric. Hamilton carefully ruled that "all are free to pray as they wish in their own houses of worship or in other settings," but he added that "official prayers be inclusive and non-sectarian, and not advance one particular religion." The Court of Appeals overturned the decision on procedural grounds, a point usually unnoticed by Sessions.

Interestingly, the Circuit Justices overturned a Hamilton opinion that the First Amendment did not prohibit Indianapolis's attempt to require parental consent for childrens' access to video games of sexual content or extreme violence. The appellate court in effect supported First Amendment "rights" of children. Sessions has been strangely quiet on this case.

On November 17, the Senate ended the stall, and voted 70-29 to end the filibuster. Ten Republicans voted for cloture, including Lugar. Two days later, the full Senate voted 59-39, with Lugar casting the sole Republican aye vote. The confirmation by itself probably has little political effect. The 7th Circuit appellate court, which serves, Illinois, Indiana and Wisconsin, will have seven judges nominated by Republican presidents, and Hamilton would be the fourth chosen by a Democrat.

Sen. Sessions, the Republican-designated point man on judicial nominations, has a pertinent history. In 1986, Reagan nominated U.S. Attorney Sessions for a federal judgeship. The Republican-dominated panel held a prompt hearing, but Democrats unearthed a sorry record of Sessions's dubious past of offensive racial remarks and notions, and the Committee rejected his nomination, 10-8. Sessions now is a man on a mission, supported by outside lobbying groups to thwart Obama's nominations. Former Reagan Attorney General Edwin Meese secured a letter signed by 24 leading conservatives, urging a filibuster against Hamilton, calling him "precisely the kind of liberal judicial activist who would use our federal courts as his own superlegislature." Nine of the 24 signatories opposed judicial filibusters during the Bush administration, yet they now urged GOP senators to do exactly that. We need a scorecard to tell the players in their ever-changing roles.

Obama has barely scratched the surface of his opportunities to secure judges of his liking. We have 98 vacancies for district and appellate courts, and only 19 pending nominees. A majority of federal judges are Reagan and the two Bush's appointees.

The David Hamilton Senate saga is a foretaste of what we can expect. In George W. Bush's first year in office, he made 64 nominations to federal courts; Obama has made 26, according to the Alliance for Justice. Bush had 18 confirmed choices by that time; Obama has had 7, including Justice Sonya Sotomayor. For the president, too, time is getting shorter. Presidential power often can be seen as the story of a steady erosion of support and power in Congress. Obama should not lose sight of his moment and his opportunity to shape (and re-shape) the judiciary in his own image -- just as his predecessors have done throughout history.

Stanley Kutler is the author of Judicial Power and Reconstruction Politics, and other writings.

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