05 Feb 2004 Legal Briefs #38: Four-Tiered Judicial Crisis

There is a judicial crisis in this nation:

Radical Judges: Activist judges, largely appointed by liberal presidents, are interpreting the law in ways that the Founding Fathers never intended. Bans, for instance, on students saying the Pledge of Allegiance but determining the burning of the American flag in protected by the Constitution.

Judicial Emergencies: Several courts in America that are considered “judicial emergencies” because they don’t have enough active judges to handle caseloads. President Bush has nominated many fine candidates, but a liberal minority in the Senate has stopped confirmation proceedings on many of them through administrative holds and filibusters that prevent timely votes.

Brain Drain: Because of obstructionism, nominees such as Patricia Owen have waited since May 2001 — over 1,000 days — to get a hearing and a vote. Nominee Miguel Estrada withdrew his name from consideration after it was clear no headway was being made in his confirmation. If this obstructionism continues, fewer talented attorneys, judges and law professors will agree to be nominated for federal judgeships.

Staff Crisis: After memos from the Senate Judiciary Committee painted a picture of a Committee virtually run by liberal special interests during the chairmanship of liberal Senator Pat Leahy were made public, those who should have been answering to these grave charges instead brilliantly spun the scandal into a hunt for who “leaked” the memos. Several conservative staffers are suspended, and a senior aide to Majority Leader Bill Frist is now considered likely to lose his job based on circumstantial evidence and the howls of the opposition. If he is fired, it will have a chilling effect on conservative staffers and enrage conservative allies.

Who’s to blame? The liberal obstructionist minority definitely bears a lion’s share. But the President Bush, Senate Majority Leader Frist and Senate Judiciary Committee Chairman Hatch also bear a significant amount of responsibility for failing to resolve or at least ameliorate the crisis.

During the President’s State of the Union Address and his press conference the day after Saddam Hussein was captured, the President had ample opportunity to address the judicial crisis to a large segment of the American people who don’t know it exists. He didn’t.

White House officials say the President addresses the issue in speeches on the road to rapturous applause, but using it as fodder at fundraisers isn’t going to help nominees like Janice Rogers Brown. He took the time to discuss things that are apparently priorities to him such as Medicare restructuring, lawsuit abuse, tax reform and steroid abuse (in the State of the Union only), but not the plight of nominee Carolyn Kuhl. Conservatives — who believe their issues are being largely overlooked at a time when they are asked to commit to another four years of Bush’s leadership — are taking note.

In the Senate, Frist and Hatch are allowing the real issue to be spun away. Over $500,000 in taxpayer money has already been spent tracking down the source of a few “leaked memos” (memos containing no national security secrets that had left in an open area of a computer system by Democratic staffers, subsequently made public by Republican staff). No attention, however, is being paid to the fact that Elaine Jones — the head of the NAACP legal arm and a key figure in the memos — resigned her position after a complaint was filed regarding her potentially unethical behavior reported in the memos. No one is disputing the content of the memos, but the only ones who seem to be under the interrogation lights are the conservatives — who have thus far not been found to have done anything wrong.

In fact, to the extent the memos reveal wrongdoing, their public release should be termed whistle blowing and it should be applauded.

Conservatives have been told to look to the 2004 elections as the only way to break the legislative logjam that is central to this judicial crisis. However, those who hope to see judicial nominees receive timely up-or-down votes in the U.S. Senate were given the same speech in 2002. Unless decisive action is taken now, many will lose faith in this President and this Senate leadership as committed to true judicial reform.