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Here is another short article dealing with this issue!
Full text from Human Events Article
January 14, 2000
Bush Judges: Split Decision
by Thomas Jipping
What kind of judges will Texas Gov. George W. Bush appoint if he is elected President of the United States?
This is not an easy question to answer because Bush has made few statements about his judicial philosophy, and those he has made are vague and ambiguous. He has said, for example, that he will not apply a "litmus test" in choosing judges. But Al Gore has said exactly the same thing-and, apparently, with exactly the same meaning. Neither he nor Bush will use Roe vs Wade, or the specific issue of abortion as a tool for determining whether a potential nominee ought to serve as a federal judge or a Supreme Court justice. This indicates nothing, however, about what tools they will use.
On Bush's website, under the heading "Judges," the following statement appears: "Would appoint strict constructionists who would interpret the law, not legislate from the bench." Similarly, Bush told Tim Russert on NBC's "Meet the Press" that he would appoint judges who apply a strict interpretation to the Constitution. On the surface this appears to be a more substantive standard.
Indeed, liberal columnist Carl Rowan cited it as evidence that Bush would appoint "the most conservative...U.S. Supreme Court in this century." (Interesting commentary--considering Rowan wrote it in the last century.)
Yet, in the Bush family the terms "strict interpretation" or "strict constructionist" carry their own pedigree. George W.'s father used such language to describe the sort of judges he intended to appoint before he decided to name David Souter to the Supreme Court. Since his confirmation, Souter has sided with the judicial activists on virtually every significant constitutional issue.
Before getting too worked up about Bush the Younger, Rowan might want to recall that terrified feminists adamantly opposed Souter's confirmation on the presupposition that he would become the final vote needed to overturn Roe. In fact, he became the fifth vote to reaffirm it.
Unfortunately, Republican-appointed federal judges are a more philosophically diverse group than their Democratic colleagues. The American Center for Law & Justice recently reviewed federal court rulings on state partial birth abortion bans. Democratic appointees, it discovered, were completely predictable. One hundred per cent of them ruled that it was unconstitutional for a state to prohibit partial birth abortion. Of Republican appointees, on the other hand, 50% ruled that states could constitutionally prohibit partial birth abortion, while 50% ruled that they could not. More remarkably, six out of the seven federal judges appointed by President Bush who have so far had occasion to rule on whether a state can prohibit partial-birth abortion have ruled that it is unconstitutional for a state to do so. So much for the 1989-1993 crop of so-called strict constructionists.
It is cold comfort for another Bush to vow, now, that he will give us four more years of "strict constructionists."
George W. has also said that Justice Antonin Scalia, one of the most committed advocates of judicial restraint in generations, is his favorite jurist. But Bush did not indicate exactly why Scalia is his favorite judge or whether he would appoint others just like him.
In light of this vague rhetoric, Bush's actions as governor of Texas remain the most concrete clues for deciphering what kind of judges he will actually appoint-and, in fairness, Bush himself repeatedly has urged voters to look at this record.
Yet, even here the pickings are slim. Texas state judges are elected. Under the state constitution, Bush can only appoint a judge to fill a newly created position, or to serve out an unexpired term of a deceased or retiring incumbent. A list provided by Bush's office indicates that he has appointed 99 individuals through Nov. 19, 1999. These include four of nine Supreme Court justices, 15 of 78 Court of Appeals judges, 69 District Court judges, and 11 administrative and other court judges.
Secondly, the Texas Supreme Court is different from other state supreme courts. In effect, Texas has two courts of last resort, a Supreme Court that handles civil cases, and a Court of Criminal Appeals that handles criminal cases. Bush has not named one judge to the highest criminal court-- meaning there is no way to gauge the philosophy of his appointees in one of the most important areas of the law.
Bush's record on judicial appointments is furthered beclouded by the plaudits it has garnered from strange bedfellows. In a recent article in The American Prospect, for example, liberal Harvard Law School Prof. Randall Kennedy wrote that Bush had made appointments "that even liberal observers have applauded. He has elevated to the bench highly competent, middle-of-the-road attorneys who are well respected by the state bar." But Kennedy failed to identify these "liberal observers" or why exactly they were applauding. He did not even explain his own criteria for concluding that Bush appointees were "middle-of-the-road".
A group funded by plaintiffs' tort lawyers claims Bush's Supreme Court appointees have had a "moderating" effect. State bar president Lynne Liberato echoed this view, saying that "Bush appointees are pulling the court toward the middle of the road." On the other hand, a major business association has said that the state high court is a "fair forum."
Shrewder observers have analyzed how Bush's appointees go about the process of judging: how they reach their conclusions, rather than what conclusions they reach. Writing in the Texas Journal, a Wall Street Journal reporter concluded that Bush judges "follow a nonactivist, slightly right-of-center approach." One appellate expert told the reporter that Bush's judges "appear to agree that a judge's role is to interpret the law, not to change it." That would place Bush's judges generally on the restrained side of the philosophical divide.
The important questions for national voters, however, is whether a President Bush would consistently appoint restrained judges who interpret the law rather than change it--and Bush's selections in Texas indicate that he can easily be drawn away from a focus on judicial philosophy.
The Texas Lawyer, for example, reported that Bush's staff looks not only for good lawyers, but also for "good people." Another writer concluded that Bush "seems to seek out and select judges based on quality-not ideology-and this may speak volumes about the men and women he'd tap for the most powerful courts in the nation if he becomes President.... They are political moderates, and they hail from a wide range of backgrounds..... It's safe to say that the only litmus test employed by Bush's judge-pickers is character."
As recent history demonstrates, "character" is a subjective term in the political world.
In addition to "character," it was also widely acknowledged that Bush has emphasized "diversity" in his appointees. The Associated Press reported that 17% of his judicial picks are minorities. Bush says that race or ethnicity are secondary to a nominee's qualifications and integrity. But that is not the same as saying that race and ethnicity don't count.
Whether he has achieved the ethnic "diversity" he desired, Bush definitely has achieved philosophical diversity. The Texas Journal identifies Bush appointees as the most liberal and most conservative members of the Texas Supreme Court. Justice Deborah Hankinson, reports the Journal, "has written some of the court's most liberal opinions" and "earns high marks from the state's plaintiffs' bar." Justice Greg Abbott, in contrast, is considered the court's conservative anchor.
Bush's appointees have taken the opposite sides in some important civil suits.
In Read v. Scott Fetzer Company, Justice Hankinson and fellow Bush appointee James Baker joined the majority in ruling that a company marketing products through door-to-door salesmen is responsible when one of those salesman rapes a customer even though it had no control over selection of those salesmen. This decision topped the list of "proconsumer" rulings identified by Court Watch, a group funded by plaintiffs' lawyers. Justice Abbott dissented, concluding that a company cannot be sued for failing to conduct a background check when it has no control over selection of its distributors.
In Mellon Mortgage Company v.Holder, Justice Abbott wrote the opinion refusing to hold the owner of a parking garage responsible for the sexual assault of a motorist to drive to the garage after a traffic stop and assault her in his squad car. Justice Hankinson joined the dissent of Justice Harriet O'Neill--a judge Bush had appointed to a state appeals court before she won election to the supreme court.
Bush appointees have been on the opposite sides in other important matters as well.
In Matter of N.J.A., the court decided that a juvenile court no longer had jurisdiction over a juvenile offender who turned 18 after committing a crime but before her trial could begin. Justice Hankinson joined Justice Baker in that majority opinion. Justice Abbott dissented, arguing that the majority ignored the text and intent of the relevant statute.
Before Bush appointed Justice Hankinson to the court, Justice Baker had joined the conservative Justice Abbott in the majority opinion on a number of other significant cases. In Sherman v. Henry, they refused to stretch any so-called constitutional right to privacy to include adultery. In Vinmar v. Harris County Appraisal District, they held that for the state to impose a "property tax" on goods awaiting export violated the U.S. Constitution, which granted sole power to regulate foreign commerce to the U.S. Congress.
Finally, in Republican Party of Texas v. Dietz, they dismissed a homosexual group's lawsuit to obtain a booth and advertising space at a political convention. Justice Abbott rejected the argument that a constitutional protection for free speech required a political party to provide a venue for an ideological group it did not approve of.
Clearly, on balance, Bush would appoint better judges than Gore would. But would they be truly good judges? As the Republican Supreme Court appointees of the 20th Century demonstrate, there are two types of judicial restraint: one driven by political cautiousness, the other by respect for the Constitution. Cautious judges resist straying from precedent (even bad precedent). Constitutionalist judges resist straying from the Constitution. Sandra Day O'Connor, a cautious judge, said the court should not abandon Roe v. Wade. Antonin Scalia, a constitutionalist, said the decision had to go because it violated the fundamental law of our land.
The legal and media establishment often call the cautious judge "moderate" and the constitutionalist judge "extreme" or "ideological".
Bush's record of appointing judges in Texas suggests he will appoint more cautious judges than constitutionalist ones, more O'Connors than Scalias. One analyst made an observation repeated elsewhere by others: "Bush;s judicial picks are not extreme... [They] don't carry an ideological flag with them to the bench." One paper quoted a University of Texas professor saying that Bush's approach "is not so focused on ideology [as] it is on reputation and ability." Tom Pauken, former chairman of the Texas Republican Party, calls Bush's appointments "a mixed bag" and says, "I would not have confidence that we might not see another David Souter on the Supreme Court in a Bush presidency."
The activist judges who now dominate the federal courts have changed America profoundly-and for the worse. The next President will either lock in this judicial supremacy for the next half-century or begin returning control to "we the people" by appointing constitutionally restrained judges. It is clear that Al Gore will place America firmly in judicial hands.
If historical trends in judicial retirements hold steady, a President Gore would have the opportunity to freeze activists into nearly 70% of the federal judgeships.
Would a President Bush, serving with what is almost certain to be a Republican-majority Senate, seize an unprecedented opportunity to re-balance America's system of government? If, as President, he appoints mostly cautious judges who will adhere even to the misguided activist precedents of previous courts, the federal bench at the end of his term will still be dominated by activists. If his appointees to the Supreme Court follow in the footsteps of O'Connor, rather than Scalia-if they are Hankinsons, not Abbotts (reference to Texas judges)- an unparalleled opportunity to take back our government from the tyranny of the judges will be lost forever."
End of Article
|So, it is up to you, the voter.
Choose a candidate who will not compromise on God's issues and likely lose the election or...take the faithless way with a nice Governor Bush. Can that decision please God who taught us not to compromise on His issues? If we vote for Bush, a fellow Christian, with such a compromising stand, don't we fail to 'disciple' him? If so, then we hurt his eternal rewards in exchange for a possible four year term. As Christians, we really look foolish when we think in the short term. We lose our witness to the world when we fail God. God also turns his back on our prayers when we choose to ignore His Word.
Howard Phillips, if elected, could theoretically, constitutionally remove (impeach) these activist judges and therefore the fear of a life sentence of a particular justice on the bench could be relieved. See his web site http://constitutionparty.com for details. More importantly, God told us not to compromise, there is nothing as important as pleasing God, not even a four year election.