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Jewish World Review May 21, 2001 / 28 Iyar 5761

Don Feder

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Coming soon to a senate near you -- Bush judge wars -- ONCE upon a time, liberal interest groups agonized over vacancies on the federal bench, activists argued that presidents have a right to appoint judges who reflect their values and Democratic senators cursed colleagues who applied litmus tests to nominees.

That was then; this is Bush.

When Bill Clinton was busy reshaping the federal judiciary to conform to Hillary's mental landscape, Nan Aron of the lefty Alliance for Justice said a president has a "duty to ... appoint jurists who share his views."

Sen. Ted Kennedy then warned that, in the confirmation process, "advise and consent" must not become "abuse and dissent." And Sen. Patrick Leahy cautioned, "The ability to administer justice ... is being hurt" by 21 vacancies on the federal appeals court.

But now that President George Bush is nominating judges -- there were 11 nominations last week, more are expected this week -- Democrats are in no hurry to fill 27 vacancies at the appellate level and 73 openings in the district courts.

Knowing what's at stake, they'll apply litmus tests of their own on issues like abortion, quotas and the death penalty.

Democratic senators will drag their feet, complain about nominees being outside the mainstream and hope that next year's election will give them control of the Senate and an absolute veto over the process.

For eight years, Clinton had a good run. The man who treated the Constitution with contempt appointed 53 percent of all federal judges. With a Senate controlled by his party for six of eight years, Reagan got 382 judges. With a Senate in the hands of the other party for six years, Clinton had 377 of his choices confirmed.

Clinton stacked the court with hyper-active judges like Guido Calabresi, who invented a constitutional right to assisted suicide in Quill vs. Vacco (latter overturned by the Supreme Court) and H. Lee Sarokin, who held that a vagrant emitting a room-clearing stench had a right to camp out in a public library. "If we wish to shield our eyes and noses from the homeless, we should revoke their condition, not their library cards," his honor sermonized.

But Frederica Massiah-Jackson was Clinton's judicial philosophy made flesh. As a state judge in Philadelphia, Massiah-Jackson liked to play public defender. She once cursed a prosecutor in open court and, on another occasion, outed two undercover officers in her courtroom. Opposition to her Massiah-Jackson was led by Philadelphia's Democratic district attorney. The nomination was eventually withdrawn.

During the campaign, Bush promised to appoint judges who understand their role is "to interpret the law, not to legislate from the bench." Presumably, that resolve was strengthened when Florida's Supreme Court tried to help Al Gore hijack the election.

The court, all Democratic appointees, decided to rewrite Florida's election law. The justices ruled that when the state legislature said manual recounts must be completed in seven days, it didn't really mean seven days, and ordered Gore's electoral account credited with 383 contested votes. This was reversed by a 5-to-4 ruling of the U.S. Supreme Court.

Forget Florida. You can hardly walk from your bedroom to the bath without tripping over examples of judicial imperialism.

Last Monday, the Supreme Court unanimously ruled that there was no "medical marijuana" exception to the federal drug law. On this point, the Controlled Substances Act is clear enough that even such notorious myopics as Justices Ruth Bader Ginsburg and David Souter were able to read it without a magnifying glass.

Not so a three-judge panel of the 9th Circuit Appeals Court, whose 1999 decision the high court overturned. Without a shred of evidence of legislative intent, the judges (two Carter and one Clinton appointees) decided a "medical necessity" defense had to exist.

This is the mentality -- the law is a magic lamp for judges to massage until the desired results are produced -- Bush is fighting. This is the thinking, which currently dominates the federal court, Democrats are determined to preserve.

Unless the American people want to see their future shaped by judges who might as well be on drugs, they had better get involved.

JWR contributing columnist Don Feder's latest books are Who is afraid of the Religious Right? ($15.95) and A Jewish conservative looks at pagan America ($9.95). To receive an autographed copy, send a check or money order to: Don Feder, The Boston Herald, 1 Herald Sq., Boston, Mass. 02106. Doing so will help fund JWR, if so noted. He is also available as a guest speaker. To comment on this column please click here.

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© 2001, Creators Syndicate