JUDGING THE JUDGES

The sweetheart treatment is about to stop. Now influential Republican senators and outside agitators are aiming to use the confirmation process to see to it that judicial activists do not reach the federal bench. The senators will be applying a simple litmus test: If a nominee has an expansive view of the role of judges, he will not be acceptable. Meanwhile, Tom Jipping of the Free Congress Foundation, a mainstay of conservative battles against the activist judiciary, has assembled a formidable coalition of 270 groups to pressure senators to vote against activist nominees. (The Ethics and Public Policy Center is undertaking its own, more highbrow project on the judiciary next month.)

Conservatives have been manning the ramparts against judicial activism for two decades now, but their frustration has risen to the boiling point in the past few years after several very broad, very questionable decisions. Among them: a California judge’s effort to block the California Civil Rights Initiative; two appeals-court decisions in favor of physician-assisted suicide; and a Supreme Court decision that struck down an anti-gay-rights initiative approved by Colorado voters. They are redoubling their efforts now, since by the end of Clinton’s second term, his appointees will constitute about half the federal judiciary.

Jipping says it’s time to end the “conspiracy of silence” around judicial confirmations. He wants recorded votes on every nomination. He also wants the Senate’s vetting process to focus on judicial philosophy in hopes of determining whether nominees will practice restraint on the bench. As part of the pressure campaign, the Christian Coalition has decided to include senators’ adherence to Jipping’s ideas as part of its ratings. Jipping has even asked senators to sign a pledge not to support “judicial activists.” Three Republicans — Larry Craig, Lauch Faircloth, and Jim Inhofe — have done so.

Orrin Hatch is caught in the crossfire. Shortly after the November election, Utah’s senior senator warned that “if President Clinton is permitted to use the next four years to fill our courts with liberal judicial activists, the damage to our Constitution, the rule of law, and our very right to democratic self-governance will be irreparable.” That talk is like manna for conservatives, but it is belied by Hatch’s friendly relations with the administration’s judicial-selection team. Jack Quinn, then White House counsel, praised him last year for being “terrifically cooperative and bipartisan.”

“Senator Hatch has overseen a process geared toward confirming judges, not weeding out judicial activists,” Jipping complains. Hatch says that while there are few nominees he would have selected if he had been president, ” Clinton has done a better job than people expected.” And as a strong believer in executive privilege, Hatch is inclined to let the president have the appointments he wants; it would be “unseemly,” he says, not to confirm judges on strictly ideological grounds. (The wars over Clarence Thomas and Robert Bork are the exception in modern times; judicial nominees usually sail through, whether the president is Clinton or Reagan.)

But Hatch argues he’s hardly given the administration a free ride; he says he uses his good relations with the White House as a weapon that allows him a preemptive veto of some candidates (“I just call the president; he always takes my calls,” says Hatch). Still, some of his Republican colleagues believe Hatch has been excessively deferential to the administration’s nominees. When Senate Republicans met in January to set a 10-item agenda, Slade Gorton of Washington announced he wanted one of the items to be a commitment to hold roll-call votes on judicial nominees. Hatch objected to this encroachment on his turf; the compromise reached was the formation a task force on judicial nominations. Its true purpose, say conservatives, is to keep Hatch on his toes and stiffen his spine. The task force is expected to recommend some procedural reforms, like curtailing the role of the American Bar Association in rating nominees. Hatch supports such a move; last week, referring to the group’s leftist outlook, he said, “It is time to revisit the sanctioned use of the ABA.”

The wild card in the confirmation game is Trent Lott; as Senate majority leader, he decides when to bring nominations to the floor. He has made noises about standing foursquare against judicial activism, but the anti-activist forces are worried that Lott will use judicial confirmations as a bargaining chip with Democrats. Early in his tenure last year, Lott allowed 17 judges to be approved by unanimous consent before working with conservative senators to prevent other nominations from being considered on the Senate floor before the election.

The Clinton administration has already sent 20 new nominees to Hatch for confirmation, but he has not moved on them; he says when Democrats controlled the Senate they didn’t start confirmation hearings until March or April.

Two weeks after the election, an associate White House counsel told the Washington Post that Clinton “wants people who aren’t going to use the courts as a substitute legislature. The approach from the beginning was to get people who are militantly moderate.” Hatch is skeptical. “We probably got more moderate judges the last four years than we’re going to get in the next four,” he says, and he warns that “if the White House is going to put punks up there [as nominees], I’m not going to work with them.” Music to Tom Jipping’s ears.

Matthew Rees is a staff writer at THE WEEKLY STANDARD.