One man's activist: what Republicans really mean when they condemn judicial activism - GOP lawmakers, Bob Barr, Orrin G. Hatch, and Majority Whip Tom DeLay attack judicial activism

Washington Monthly, Nov, 1997 by Herman Schwartz

Judges, watch your backs: The Congressional Republicans have officially declared war on "judicial activists," judges who go beyond interpreting the law into the realm of what GOP lawmakers consider "making" the law. Rep. Bob Barr of Georgia is but one of several Republicans to denounce the current crop of jurists for "assuming for themselves the powers and responsibilities of legislators or executives"--an offense those on the right say must not be treated lightly. They have been particularly incensed over a few recent decisions setting aside death sentences, excluding evidence in a drug case, and blocking the implementation of the California referendum ending affirmative action programs. This May, Barr joined Majority Whip Tom DeLay of Texas in calling for the impeachment of judges as a "proper tool" for "political offenses," with an impeachable offense defined by DeLay as "whatever a majority of the House of Representatives considers it to be at a given moment in history" Their stated goal, according to DeLay: "The judges need to be intimidated"

With an eye toward weeding out future judicial activists, GOP senators have virtually hijacked the appointment process. Judiciary Committee Chairman Orrin Hatch has declared he will not "stand by to see judicial activists named to the federal bench" To this end, Hatch and his fellow Republicans have instituted a massive slowdown on judicial appointments. According to political scientist Sheldon Goldman of the University of Massachusetts, who has been studying the nomination process-for 40 years, the Republicans are engaged in an effort "unprecedented in its scope... to deny the Clinton administration as many nominations as possible"

Among their favorite tactics is the imposition of increasingly intrusive requests for the nominee's opinions. For example, last year Margaret Morrow, the first woman to serve as president of the California Bar Association, was unanimously approved by the Senate Judiciary Committee. Because of Republican foot-dragging, however, Morrow's nomination didn't come up for a floor vote during the 1996 session. Moreover, when the Senate reconvened this year, Republican Charles Grassley of Iowa demanded Morrow's position on every one of 160 California initiatives in the last 10 years. (Grassley eventually scaled back his demands--after all, how much intimidation is necessary?)

Other GOP legislators have pushed for even more direct action to keep "activists" off the bench. Sen. Slade Gorton of Washington tried unsuccessfully to have Congress cut into the president's nominating power by requiring the president to get advance approval for a judicial candidate's ideology from the senators representing the circuit to which the candidate would be nominated. For his part, Sen. Phil Gramm of Texas pledged to block a Clinton nominee on the basis that the person had been "politically active"

Such delaying tactics have already borne fruit. In all of 1996, the Senate let through only 17 trial judges and no appellate judges, an unprecedentedly small number. This year's Congress seems to be following the same route: As of September 30, the Senate had confirmed just 18 judges, leaving 96 vacancies on the federal bench--including around 30 that the Administrative Office of the United States Courts calls "judicial emergencies," judgeships unfilled for more than 18 months. Some slots have been vacant since 1994. For a while, President Clinton provided the Republicans with a convenient excuse for the outrageous number of vacancies by sending up very few nominations. However, this cover is no longer available, as the president has now nominated some 70 judges, many originally sent up during the last Congress.

The conservative crusade against activist judges has been even more effective on the state level, where elective judges who voted in ways displeasing to Republicans have been denied re-election by organized electoral campaigns. In Tennessee, for example, Judge Penny J. White heard only one death penalty case in her 19 months on the state Supreme Court. In that case, she voted with her colleagues to order a new death-sentence hearing for a convicted murderer. Less than two months later, she was denied reappointment in a routine retention election, the victim of a Tennessee Republican Party campaign against her. Likewise, Nebraska Supreme Court Justice David Lanphier was ousted last November for having voted against a term-limits law and in favor of a retrial for some defendants convicted of second-degree murder.

The result of the conservative campaign is a massive pile-up in the federal courts. On the West Coast, oral arguments in some 600 cases were canceled last year, and the Second Circuit in New York has had to cancel sittings as well. One trial judge in Illinois put all of his civil cases on hold and went an entire year hearing only criminal cases, while a San Diego district court holds only about 10 civil trials a year.

The Republicans justify themselves by arguing that the damage they're inflicting is all in the name of defending the constitutional separation of powers against judicial activism. But oddly enough, Republican crusaders seem to have overlooked an important point: Some of the worst "activist" offenders on the bench today are the conservative members of the Supreme Court.