On August 18, the U. S. Court of Appeals for the Tenth Circuit ruled that a U. S. District Court had inadequately considered the Eighth Amendment claims of one Josephine Brown. Brown is a transsexual prison inmate who argued that Colorado’s refusal to provide her with estrogen and other medical therapy necessary to the maintenance of her gender identity constituted cruel and unusual punishment. The Tenth Circuit decision in Brown’s favor was written by Judge Robert Henry. Judge Henry was placed on the federal bench by President Clinton.
Hmmm.
Republicans are eager to use the president’s judicial appointees against him in the coming campaign. It’s a perfectly legitimate device, in our view. It’s also one the White House is eager to neutralize, as the recent brushfire of partisan back-and-forth over Judge Harold Baer makes clear. Baer is the Clinton-nominated district court judge who ruled that a 40-minute videotaped confession and $ 4 million of seized cocaine and heroin were inadmissible evidence at a drug trial because the five suspects in the case had been arrested illegally. Their flight from New York City police, Baer initially decided (he has now reversed himself), fell short of “probable cause.” In Manhattan’s Washington Heights neighborhood, the judge wrote, police are viewed as “corrupt, abusive and violent.” So running away from the cops is rational, not suspicious.
A genuinely loopy and offensive conclusion, to be sure. And the Clinton administration, its damage-control antennae vibrating convulsively, wanted nothing to do with it. On March 21, unwilling to wait for the judge to reconsider his ruling, the White House made the astonishing announcement that the president might seek Baer’s resignation if he failed to change his mind. And two days later, not to be outdone, Bob Dole said Baer “ought to be impeached.”
Federal judges serve for life, of course, and their evidentiary rulings, however stupid, are never “high crimes and misdemeanors,” the only grounds for impeachment the Constitution allows. Nevertheless, we have learned something important from this rather clumsy inter-party skirmish. We know that Bill Clinton’s judgeships will be an issue in this year’s presidential campaign; the White House “threat” against Harold Baer was front- page news across the country. And we know that the president has constructed his defense against the charge that a more expansive (i.e., liberal) vision might soon control the fedral courts — with unpopular consequences — should he win in November.
Clinton and his men contend that Republicans have no standing to criticize administration judicial appointments since Republican senators have opposed almost none of the judges in question during confirmation proceedings on Capitol Hill. There have been 185 Clinton appointments to the district, circuit, and Supreme courts. All but four have won voice-vote approval in the Senate, and only two have earned significant Republican opposition: Rosemary Barkett, now on the Eleventh Circuit, and H. Lee Sarokin, now serving on the Third. How, the White House pointedly asks, can the GOP now complain about Baer — or any other judge who moved so easily through confirmation?
This is a decent talking point. But it’s not much of an argument. Granted, lifetime service on the bench is a bigger deal than a temporary job as assistant secretary of education, and the Senate’s “advice and consent” responsibility is at its weightlest where judicial nominations are concerned. But the tradition of congressional deference to presidential appointment powers should, and does, extend to the courts. And under the guidance of Judiciary Committee chairman Orrin Hatch, the Republican Senate has been admirably — maybe even excessively — respectful of that tradition, for practical as much as philosophical reasons.
In an average four-year presidential term, roughly a quarter of all federal judgeships become vacant. Such turnover typically involves more than 160 judicial positions at the district court level, where the vast bulk of federal casework is performed. The sheer volume of nominations necessary to keep these courts functioning makes close Senate scrutiny of appointees almost impossible. In other words, Senate Republican approval of President Clinton’s district court nominees hardly means that the GOP has pre-certified those judges’ rulings. Except in the rarest circumstances, senators know that a president’s lower-court nominees are at least minimally qualified — and little else.
But isn’t greater Senate attention to the more important federal appellate courts possible and necessary? Yes, but here the president has acted deliberately to squelch nomination conflicts. There have been no Barketts or Sarokins since Republicans took control of the Senate; Clinton’s post-1994 circuit court nominees are low-profile lawyers without controversial backgrounds or potentially embarrassing paper trails. “We’ve steered clear of a few people who might have been fabulous judges but who would have provoked a fight that we were likely to lose,” says the administration’s chief judge- picker at the Department of Justice.
Until recently, the president’s fear of Senate wrath on major court appointments has irked liberal judicial activists. “My concern with the administration is its reluctance to engage the public in any debates about judgeships,” Alliance for Justice chief Nan Aron told Legal Times last September. “Win or lose, it’s good for the country to hear what the president thinks about the courts.” Nicely put. But Bill Clinton is always more interested in results than principle. In practice, Nan Aron’s liberalism depends above all on a maintenance of America’s jurisprudential status quo. Brilliant jurists — “Scalias of the left” — might be nice. But bodies, votes on the courts, are really all you need. And bodies are what Clinton has nominated, bodies that Senate Republicans have not really been able to oppose.
It is simply not true, as a New York Times “news analysis” has it, that Baer “is an anomaly,” that Clinton-appointed jurists have proved to be a purely “moderate, mainstream group” whose opinions will frustrate “Republican record-checkers” looking for campaign ammunition this year. Dozens of opinions and dissents by these judges — like the Tenth Circuit ruling on Josephine Brown — are already circulating in conservative legal circles. Some look quite juicy. The Clinton administration worries over this prospect and threatens to retaliate with a “so’s-your-mother” collection of comparably unattractive rulings by judges appointed during the Reagan and Bush years.
Fine, we say: Let’s see the list and have that debate Nan Aron once claimed she sought. Of course, these days Aron has changed her tune: “There’s no need for the administration to engage in a discussion that is, such a threat to judicial independence,” she now suggests. And “responsible” opinion is in her corner. Partisan politicking about the courts “is very sad,” the Times’s editorial page intones. “Reasoned debate about judicial conduct is virtually impossible during election years, which lend themselves to intellectual intemperance.”
So prissy. And so contemptuous of the American voter’s ability to make an intelligent judgment about, and exercise his democratic influence over, the third branch of our government. This year’s presidential campaign will have a lasting effect on the makeup of the federal judiciary. It may have no greater effect. If Clinton is reelected, Democratically-appointed judges will, by the time he leaves offce, once again dominate the appeals courts. And the philosophical alignment of the Supreme Court, now split 5-4 on a series of politically sensitive issues — affirmative action, term limits, religion, federalism, and so on — may well be reversed.
A national conversation about such matters is nothing to be afraid of. That conversation may be possible only during a presidential election. Both parties should have at it. There are far dumber and less consequential things they could be talking about.
David Tell, for the Editors
