Jewish World Review July 8, 2005 / 1 Taamuz, 5765

Thomas Sowell

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Judicial havoc: Part III

http://www.NewsAndOpinion.com | In addition to the havoc wrought by the judiciary in our times, there is the havoc wrought on the judiciary itself by others.

Some have blamed the murders of a judge not long ago, and the murder of another judge's family, on critics of judicial activism. But, in each of these cases, the motive seems plainly to have been personal animosity growing out of a judge's ruling against the particular individuals concerned.

It is doubtful if these murderers had ever read a law journal article or a Federalist Society paper on judicial activism. It is one of many signs of the shameless dishonesty in discussions of courts that anyone would try to silence criticisms of activist judges with unsubstantiated claims that such criticisms have resulted in violence.

What makes such claims even more shameless is that many of the same people who decry criticism of judges' official acts do not hesitate to engage in personal smears and outright lies against judicial nominees who do not meet the liberal test of political correctness.

The harm that this does is not confined to the particular nominees who are demonized and insulted on nationwide television during confirmation hearings before the Senate Judiciary Committee. Nor is this a necessary part of the "advise and consent" duty of the Senate because any Senator can vote against any nominee for any reason without taking personal cheap shots.

Can anyone doubt that these smear campaigns make judicial appointments less attractive to some — perhaps many — highly qualified people, who tend to have alternative careers available to them, almost invariably at far higher pay?

It is one thing to be willing to sacrifice income in order to serve your country, it is something else to have a lifetime reputation for integrity, honesty, and dignity destroyed by noisy and shameless politicians playing to the gallery of special interests.

"All questions are legitimate," declared Senator Charles Schumer, one of the most shameless of them all. "What is your view on Roe v. Wade? What is your view on gay marriage? They are going to try to get away with the idea that we're not going to know their views. But that's not going to work this time."

"You cannot ask a judge to prejudge a specific matter," was the very different view of Senator Jeff Sessions, a former judge himself.

Senator Orrin Hatch put it best: "Any member of the committee can ask whatever they want, no matter how stupid. But I don't think nominees have to answer certain questions. They don't have to answer questions about how they are going to vote in the future. They don't have to answer stupid questions. They don't have to answer argumentative cases."

There is no need for any nominee to demean himself and the high office for which he has been nominated in order to try to appease politicians who are likely to vote against him anyway.

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A Justice confirmed to the Supreme Court by a narrow vote in the Senate will have just as much authority as a Justice confirmed unanimously.

Regardless of who is nominated to fill the Supreme Court vacancy created by the retirement of Justice Sandra Day O'Connor or what the outcome of the confirmation vote may be, something urgently needs to be done to stop Senate confirmation hearings from being scenes of public humiliations that can deprive the American people of the services of highly qualified individuals.

We certainly need better quality people than most of those now serving on the Supreme Court. Putting nominees through a cheap hazing circus on TV is not the way to get such people.

It will of course always be possible to get warm bodies to put on the judicial benches. But the Supreme Court already has too many warm bodies without much else besides big egos and an ear for fashionable rhetoric. Such people are too easily corrupted by the flattery of the media and the intelligentsia.

Cynics say every man has his price but some of these prices are remarkably cheap — especially for betraying the Constitution of the United States.

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© 2005, Creators Syndicate