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Jewish World Review March 19, 2002 /6 Nisan, 5762

Nat Hentoff

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Wanted: Justice | During a chronically contentious session of the Senate Judiciary Committee, its chairman, Democratic Sen. Patrick Leahy of Vermont, said that "if we don't follow the idea of getting consensus nominees (to the courts), ultimately we're going to diminish the independence of the judiciary, certainly in the views of Americans."

No matter which party is in control of the judiciary committee, some senators insist on subverting the independence of the nominees by demanding their positions on cases that are certain to come before the courts, including the Supreme Court.

President Abraham Lincoln, speaking of the essential independence of the judiciary, said of any nominee before the Senate: "We cannot ask what he will do, and if we should, and he would answer us, we should despise him for it."

But what should our attitude be toward those senators who say clearly that they will not approve nominees if they do not assure members of the judiciary committee how they will vote on particular issues dear to the hearts of those senators?

Consider Senate Judiciary Committee member Diane Feinstein of California. On the Feb. 24 episode of NBC television's "Meet The Press," she told host Tim Russert, "I don't want to see Roe v. Wade overturned. I'm in a position where I'm going to be very careful that a judge that I vote for to go to a circuit will not do that. And I think I have every right to do so."

If Feinstein is going to be that careful about the abortion-rights views of a circuit judge, surely she will be even more demanding of a presidential nominee to the Supreme Court.

Yet, she went on to tell Russert: "It's not a question of a litmus test. It's a question of following established law and keeping that law intact." Has she ever heard of the constitutional right to judicial review? Some of the landmark decisions for liberty have been preceded by dissents, which eventually became newly established law.

But for Feinstein to say glibly that she is not imposing a "litmus test" on judicial nominees is as pure an example of newspeak (deliberate, deceptive speech) as can be found in George Orwell's "1984," (New American Library Classics, 1990).

There have been similar signals from Democratic Sens. Charles Schumer (New York), Barbara Boxer (California) and Hillary Rodham Clinton (New York). As a constitutionalist, I am all too aware of what senators on both sides of the aisle have done through the years to convince many Americans how fragile judicial independence is.

Senators like Feinstein blithely undermine it when -- as she told Russert -- "there are many points that many of us feel passionate about."

Therefore, if a nominee to the Supreme Court appears before the committee with the qualities of John Marshall, Louis Brandeis, Benjamin Cardozo or John Harlan, none of this will matter to the Feinsteins of the judiciary committee if the nominee says, "I will not tell you how I will vote on Roe v. Wade, because one of the many different possible cases concerning abortion rights is likely to come before the Court, and I decide cases on the facts of each."

But a senator, brandishing the pro-choice litmus test, will say that "you have indicated in the past that your views are pro-life." Well, Hugo Black joined the Klu Klux Klan in his past, and on the Court he eventually persuaded his colleagues to implement the guarantees of the Fourteenth Amendment to extend most of the Bill of Rights to individual states and other nonfederal entities.

What should count in a nominee -- as professor Henry J. Abraham says in "Justices, Presidents and Senators" (Rowan & Littlefield, 1999) -- is whether a nominee has demonstrated judicial temperament, professional expertise, intellectual analytical powers, and personal, moral and professional integrity, as well as appropriate professional educational background or training.

Members of the Senate should keep in mind what Sen. Joe Biden of Delaware, as reported on National Public Radio, says about voting for nominees "based on personal beliefs relative to a social issue. When we have a Republican Senate again, it will be a cold day in Hell before we have anybody on the bench who is pro-choice."

Biden said this during the debate on the nomination of Judge Charles Pickering to the Fifth Circuit Court of Appeals. Why doesn't Leahy, so concerned with judicial independence, call for sending a nominee to the full Senate no matter what the committee vote is? Sens. Biden and Arlen Specter support that democratic solution, and they are of different parties.

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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