Remember back when Republican presidents were trying to pack the federal courts with right-wing judges? These judges were going to fashion an America, as Sen. Edward Kennedy memorably put it, in which “women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids,” and so on. It didn’t happen. And you know why it didn’t happen? Because ordinary folks, the little people, simply wouldn’t let it happen, that’s why.
First to raise his voice was ol’ Uncle Ted, of course. Then came the Leadership Conference on Civil Rights and People for the American Way and Nan Aron’s Alliance for Justice. And the thing just grew and grew, a grass-roots brushfire, until it even penetrated the august precincts of the New York Times editorial board.
“A president possesses no celestial or constitutional mandate to impose his political views on a whole branch of government for a decade or more,” the Times thundered in those days, and “the Senate labors under no duty to accept even a capable nominee whose views it disagrees with.” Quite the contrary: As provided by the Constitution, “the Senate’s advice and consent is an integral part of the appointment process,” and that body “needs to reflect its political values by whom it approves.” Which is exactly what the Senate Judiciary Committee’s Democratic majority proceeded to do, subjecting Reagan and Bush administration judicial nominees to exacting review — and rejecting those it felt were not, in then-chairman Joseph Biden’s words, ” philosophically appropriate for the times.”
Well, the times they have a-changed. Today a Democratic president is submitting judicial nominations to a Republican Senate. Senator Kennedy is complaining that the GOP’s Judiciary Committee majority is ideologically hazing these qualified judges with “unreasonable levels of needless scrutiny” and “endless questions.” The Times has a-changed, as well (though without ever acknowledging as much). Politics is “always part of the process,” the paper’s editorial page now ruefully notes, but the Senate’s basic responsibility is to “evaluate nominees on their proffessional qualifications” — alone. Times columnist Anthony Lewis, in a series of recent commentaries, excoriates Judiciary Committee “ultraconservatives” for conducting a Torquemada-like search for thought crimes by would-be Clinton jurists. Senate Republicans, he concludes, are irresponsible zealots who threaten the independence of the courts.
One is tempted to say: “Tu quoque, buddy,” and leave it at that. But just for fun, let’s have a look at whether the judicial inquisition charge is actually true.
On October 29, the Judiciary Committee held a confirmation hearing on no fewer than eight judges. First up was W. James Ware, a federal trial judge nominated by President Clinton for elevation to the Ninth U.S. Circuit Court of Appeals. Before he said a word at this hearing, Judge Ware was endorsed by the Democrats. Pat Leahy of Vermont called him “well-qualified.” Barbara Boxer of California called him a “great choice.” And then it came time for John Kyl of Arizona — one of Anthony Lewis’s principal “ultraconservative” bogeymen — to pick up the thumb screws.
Kyl wanted to know Ware’s views on the legal status of affirmative action in private employment. He asked Ware this: If there is no evidence that a given company has ever discriminated against minority job applicants, and no minority group is now underrepresented in that company’s workforce, may the company “use race, national origin, or gender as the basis for employment decisions” under either the Constitution’s Fourteenth Amendment or Title VII of the 1964 Civil Rights Act?
The judge thought about this for a moment. “The case that I would bring to mind,” he announced, “is the Adarand decision of the U.S. Supreme Court,” issued in 1995. Adarand, Ware went on to explain, “holds that in the absence of past acts of discrimination, race may not be used” as an employment criterion. Period. And as an appeals court judge, Kyl wondered, ” that is the standard you would apply?” Yes, “That is the standard I would apply,” Ware replied.
Senator Kyl congratulated Judge Ware for his “very sound understanding of the law.” The rest of the hearing lasted less than an hour, most of it taken up with ritual introductions of the nominee’s sons and daughters. A couple of the other seven judges also got the Adarand quiz, and each gave a nearly verbatim version of Ware’s response. And the Judiciary Committee was satisfied. “They all passed the test,” Kyl said, and “I think it is unnecessary for us to continue to ask questions.”
Here’s the problem. Ware’s Adarand answer was wrong. So wrong, in fact, about so basic an issue, as to betray a disqualifying ignorance of the law. Adarand was a Fourteenth Amendment case involving affirmative action in government contracting. The Fourteenth Amendment does not apply to private employers. Title VII, unaddressed by Adarand, does apply to private employers. But under the still-controlling precedent of the Supreme Court’s unfortunate Weber and Johnson decisions of 1979 and 1987, respectively, Title VII does nothing to prevent those employers from using race and gender preferences in hiring whenever minority groups are ” underrepresented” in the workforce.
Now, as it happens, Judge Ware will not be confirmed to the Court of Appeals. One week after his confirmation hearing ended so congenially, the Ware nomination died — of embarrassment. It seems this James Ware is not the same James Ware he has always claimed to be, brother of one Virgil Ware, a 13- year-old black child shot to death by white teenagers near his Birmingham, Alabama, home in 1963. Alerted to the judge’s biographical appropriation, Virgil Ware’s actual family got a little annoyed. The judge apologized. He explained that he had, from an early age, made an overpowering emotional association between the shooting victim and his stepmother’s son, also named Virgil. Then it turned out there was no second Virgil. Then the judge suggested that he’d had a sister who was shot to death. And then his stepmother said there was no sister, either.
None of this fantastic mess, incidentally, was ever uncovered by Republican Senate staffers engaging in their allegedly “unreasonable levels of needless scrutiny.” Nor, for that matter, so far as anyone can tell, was it unearthed by the FBI, which conducted its standard background check on Judge Ware before President Clinton forwarded his name to Capitol Hill. And in this respect, at least . . . well, in most respects, come to think of it, W. James Ware’s experience of the judicial confirmation process is entirely typical. Because despite all the current squawking, these are excruciatingly polite and largely pro forma affairs. No Clinton judicial nominee has ever been formally rejected by the Senate — and well over 200 have been confirmed.
Yeah, say the administration and its interest-group allies, but Judiciary Committee chairman Orrin Hatch has, behind the scenes, maneuvered for partisan reasons to delay the confirmation-hearing schedule, creating a dangerous “vacancy crisis” in the courts. The statistics surrounding this accusation are complicated and boring, but the bottom line is, it isn’t fair. Since taking office, President Clinton has dithered an average of more than 600 days before sending up a name for an untilled bench spot. Just before this year’s August congressional recess, the White House delivered a fresh bunch of nominations to the Senate. Right away in September, Hatch’s committee began working through them. It has about 30 left to go. But there is an even greater number of federal court vacancies that the Judiciary Committee cannot hold hearings on. Because President Clinton has yet to nominate anyone for them.
There is no “vacancy crisis” to speak of, in other words, and there is no Senate Republican inquisition directed against Democratic judicial nominees. In fact, those few Republican senators who might even be inclined to mount such an inquisition have had an awfully hard time doing it. And this, too, is by Clinton administration design. The Clinton Justice Department deliberately chooses undistinguished lawyers with limited “paper trails” and then trains them not to say much of anything while their nominations are before the Senate. Judge X, do you believe the Constitution is a “living document” the meaning of which can and must be interpreted, ad hoc, by individual jurists? Oh, no, no, no, Senator, the nominee always says. And if you don’t believe him — there’s no reason why you should — you’re forced to hang your objections on some out-of-context half-sentence he may have written in a law- review article years ago.
This kind of mud-fight is admittedly shallow and ugly. It happens only rarely. But the point is, it shouldn’t have to happen at all. The solution, ironically, is for Senate Republicans to behave a little bit more the way Democrats falsely claim they’re behaving already. We think the Senate should genuinely slow down the confirmation process, ignore the manufactured hysteria about vacancy statistics, and perform a truly searching philosophical analysis of pending and future judicial nominees — at least at the appeals-court level. The Senate should demand that these people, all of them up for lifetime tenure in a branch of government that now decides some of the most important and vexed issues in American public life, thoroughly explain their understanding of constitutional principle and jurisprudential practice — whether they want to or not. And any judicial nominee who refuses this invitation to public debate about the law, we think, should be rejected.
An inquisition? Yes, of a sort: a constitutional inquisition in the service of constitutional government.
David Tell, for the Editors
