Judging the judicial system
Metcalf interviews critic of 'bench legislators' and stalled appointment process

Posted: March 3, 2002
1:00 a.m. Eastern

Editor's Note: The propensity of judges to effectively create law from the bench, or "judicial activism" as it has become known, is a hot-button issue in today's political climate. Thomas L. Jipping, WorldNetDaily columnist and vice president for legal policy at the Free Congress Foundation, recently discussed judicial activism with Geoff Metcalf. Jipping outlines the differences between what he deems "good" and "bad" judges and refutes claims by Democrats that Republicans held up a disproportionate number of Democrat judicial appointments in the GOP Congress.

By Geoff Metcalf
Q: So the Democrats are whining, "Shut up and sit down. It's our turn again to be cranky."

A: The first question ought to be: Is "you did it first" a legitimate way to run the Senate? Whether political partisan revenge is the kind of principle that ought to be guiding something as important as the confirmation of judges. And the second thing is ...

Q: Are the facts right?

A: Yes. Is it true that Republicans did what Democrats are accusing them of? To be honest with you, I wish it were. I wish it were true that Republicans obstructed Clinton's nominees. Because then his appointed judges wouldn't be doing what they are doing today. The fact is, Bill Clinton was 374 to 1 in his eight years in office -- second only to Ronald Reagan, and he almost beat him. Anybody who had that kind of record in anything would be a smashing success. Clinton had a supposed "opposition" Senate for six of his eight years in office, and he still had 374 to 1. I wish Republicans had had the guts that Democrats do today to stand up to the kind of activist judges that Bill Clinton appointed.

Q: You have written about a couple of them. Two of Clinton's most radical nominees were Richard Paez and Marsha Berzon.

A: Great examples. Those are two of Bill Clinton's 14 appointees to the court of appeals out there on the left coast, which is one of the most influential, unfortunately, courts in the country.

Q: And one of the most overturned courts on appeal in the country, too.

A: The most overturned by a factor of two or three by the U.S. Supreme Court. They are so far out in left field.

Q: I have actually had lawyers tell me, "Well, if the 9th Circuit Court of Appeals rules against us, that's cool. That means we have a good shot at getting the Supremes to rule for us."

A: The numbers are in their favor, there's no doubt about it. They have a reversal rate that is far higher than any other circuit in the country. And Bill Clinton appointed 14 out of the current 24 judges in that court -- two of them, Richard Paez and Marsha Berzon, are by far his most radical. And these are two that Republicans, a few years ago, had promised to keep from getting confirmed. I was personally in a meeting with then-Majority Leader Trent Lott in September of 1999, when he said, "I will not bring up the nominations of these two individuals unless we've got the votes to defeat them."

Q: So what happened to make him fold like a house of cards?

A: In six weeks he cut a deal with Tom Daschle, and a couple of months later they were confirmed.

Q: And what have these judges done since their confirmation?

A: Each of those judges -- one, Richard Paez last November, and the second, Marsha Berzon a few weeks ago -- have both issued the first rulings in the country to strike down California's "three strikes" law. It was the first such law saying and doing precisely what the voters wanted, which is treating a third felony as 25 years to life. [Paez and Berzon said the law] violates the Constitution's ban on "cruel and unusual punishment."

Q: Notwithstanding the fact that in order to qualify for that third enhanced sentence, the bad guy has to have been found guilty of two previous "serious or violent" felonies.

A: Serious or violent felonies -- this is precisely what the voters of California wanted. They said if you commit a third felony, it's not going to be treated like it was your first. It is going to be given a harsher sentence; the sentence is 25 to life. Everybody knows it. So if you don't want 25 to life, don't do three felonies. Simple as that. Well, judges know better of course, and these two radical judges look at the Constitution and they pick whatever they need to to substitute their politics and their values and their preferences for the people -- in this case, the people of California.

When it comes to the people vs. judges, the judges always win. And when you've got liberal judges like these, they are dismantling the criminal justice system. California is hardly a right-wing conservative state. It's like the Clinton judges that struck down the teen curfew right here in the District of Columbia. Washington, D.C., where I work, is probably the most liberal city in America. But they finally said, "We've got to do something to keep these young thugs and punks off the street." So they passed a teen curfew, then presto! A Clinton judge found a right for young thugs to wander the streets in the Constitution. It wasn't the Constitution, but it was that judge's constitution. But that's what happens, and that's what this fight over the judiciary is about. So as these Bush judges are being kept on the shelf -- dozens and dozens and dozens of them -- guess who is making the decisions out there? People like Marsha Berzon, Richard Paez, these liberal Clinton judges.

Q: Unfortunately, Joe Biden has a significant role on the Judiciary Committee. Joe Biden is at the top of the list of "usual suspects" of those extreme left-wing knuckle draggers. He said that if Bush were elected, you were going to see most of the judges stopped who are Republicans.

A: Yes, and for those who believe the hype today that Democrats are saying ("We're just doing what Republicans did"), this was a strategy that Democrats have had not just since Joe Biden said that ...

Q: Go back to Judge Bork!

A: ... not just six months before the election. It goes back to when Reagan was first elected. It goes back 20 years, but it intensified and really hit the main drag in 1987, with the defeat of Robert Bork. The bottom line is this: The left wing doesn't like democracy, because then their agenda doesn't win. People don't like it. People won't choose the kind of left-wing policies they want the country to have. So, like sore losers, they don't take the people's "no" for an answer. They go from the state house to the court house, and they want to find judges who will impose policies and values on us that we have not chosen for ourselves. That's why they want an activist judiciary -- political judges. And so George Bush comes along, he gets elected, he says, "I'm going to appoint judges who will simply follow the law -- who will not make the law. They know what they're supposed to do as judges, and that's all that they are going to do." Of course, the left wing can't stand these people because the left wing is not going to be able to convince these judges that their politics ought to be imposed on the country.

Q: Not to get too far off the mark, but one thing I have never never understood -- and, frankly, I think it goes beyond the petty partisan boundaries -- is the Constitution provides for three branches of government, co-equal branches: executive, legislative and judiciary. I have never understood whether through malfeasance, laziness or whatever, the legislative branch of government would willingly allow the judiciary to usurp their power and authority.

A: Geoff, that is precisely what America's founders assumed they wouldn't do. In other words, the genius behind the system of government that has given us the most freedom in the history of the planet rests on dividing and limiting the power of government. Because the more powerful government is, the less freedom we have. The Founders said you've got to keep these different branches of government separate. And they figured if legislators only have legislative power, they are going to guard that power. They are going to want to preserve it and protect it. They are not going to want to give it away. In the Founders' day, there were statesmen running the country. Today, we have just petty politicians.

Q: I have never understood this abrogation of the territorial imperative. You would think congress critters would be so jealous of their legislative power -- at least they seem that way when it comes to getting re-elected.

A: That's true, but it is precisely because getting re-elected is more important than actually governing the country that they will beg, borrow and steal to look right at Election Day. If that means passing laws that don't make any sense and letting the judges sort them out -- the Americans with Disabilities Act is a good example. That law was passed as a warm-fuzzy, feel-good, who-can't-be-for-the-disabled type of legislation.

Q: Like the USA Patriot Act.

A: That's going to be the same thing, but the ADA, we were told, would not be the "full-employment act" for lawyers. In fact, it is one of the two largest sources of federal court litigation. Judges have been rewriting that statute for a dozen years. If judges do what they like, the politicians say, "That's what I meant." If judges don't, they say, "Those activist judges are out of control. We've got to do something about them." They pat themselves on the back. All they're responsible for is being in favor of the disabled, because we have had our representatives -- the people who are supposed to be running the country -- completely give that away to the judges. We are the ones that lose because we don't have control over judges.

Q: Why doesn't Congress do something to try to rein in the judiciary? You say if they lose a decision, they say, "We have to do something about those radical judges." So why don't they do something? This cuts through both parties, Democrats and Republicans.

A: It does, except we live in a culture where politics are more important than principles and freedom. That's why we have such huge bitter fights over these judicial nominees, like the one with Judge Pickering to the U.S. Court of Appeals in the 5th Circuit down in Texas and Mississippi. It isn't, "Is he going to be a judge and only a judge so that we, the people, can run the country?" It's, "How is he going to run the country, because that's what judges are supposed to do." We have a completely distorted system now. We have a culture in which it doesn't matter how you play the game; it only matters whether you win or lose. To the founders of this country, it was completely the opposite -- the ends don't justify the means. But our cultures change.

Q: I guess I'm a dinosaur, but I happen to think that principles and freedom are important. I think they were important to the Framers. And one thing I find very frustrating -- and, frankly, I get some heat because people think of this as a conservative forum -- but I find myself throwing rocks at Republicans almost as often as I do Democrats. Particularly when you have someone as disingenuous, duplicitous and smarmy as Trent Lott. If the Republicans are going to stand for something, what is it that they stand for? What is there that they won't back down from?

A: Think of it this way: You go to a Little League game, and your son is playing on one of the two teams. Suddenly, the umpire is changing the rules, making biased calls, all because he wants one side to win.

Q: Kind of like the Olympics.

A: Exactly, because the French judge wanted the Russian pair and not the Canadians to win. So what do you say? Because I like that Little League team or I like the Russian pair, it's OK that they changed the rules, manipulated everything and it wasn't fair? Of course not! It makes every bit of difference for our freedom whether we follow the rules. The exact same thing is true with judges.

Q: Yes, but Tom, we teach our children and our pets that there are consequences to things we do in life: good things, you get rewarded; bad things, you get punished. However, when it comes to those 87 square miles of the district of criminals surrounded by reality, those rules don't apply.

A: No, they don't. And thank you for doing shows like this about subjects like this and interviews like this, because unless we tell the American people that their freedom is at stake in the votes that their senators cast on judges, they're not going to understand what happens. I'm a 14-year law school survivor, and law school messes up people's brains more than anything else. I took courses in constitutional law and never had to read the constitution.

Q: Yeah, but you had Larry Tribe's (Harvard Law School professor and constitutional law litigator) textbook, right?

A: I didn't even have Larry Tribe's book, and it was still that bad. I went to the first public university in the country that instituted a censorship policy written by my First Amendment professor. That's what's happening in law schools. Don't count on the lawyers to defend your freedom. You've got to understand it for yourself and the kind of fundamentals that are essential to defend your freedoms. One of those fundamentals is that judges stay out of politics. They just follow the law and leave the politics to you and me. Then I don't care whether you are pro-life or pro-abortion, I don't care what your position is on a political issue. Judges should do what judges are supposed to do and leave the rest to the rest of us. They say Mussolini used to make the trains run on time. He was still a dictator, people. A benevolent dictator is still a dictator, even though he may be benevolent for a time. Judges make up stuff you like, and everyone just applauds. Well, there's going to be a day when judges make up stuff you don't like, and you won't have a thing to say about it. You can't give this much power to judges.

Q: The inevitable question, and it always comes up whenever we talk about anything like this, is: People are going to call and write and say, "OK, the system is broken. Judges are abusing their power under the condition of authority. The same thing happens in Congress. What can we do about it, other than itch and moan and scream and shout?"

A: It's like any other issue. It must start first with understanding what the issue is about. That will answer a lot of other questions. We've got to understand what the real issue is.

Q: So what is the real issue?

A: The real issue is what kind of judge we are supposed to have. When you get that straight, then you understand that President Bush has promised to appoint very correct kinds of judges. He has said since the campaign, "I will appoint judges who will follow the law, and they will not legislate from the bench." That is exactly the kind of judge that we need. He's nominating good judges. It's no wonder the left wing is going after them so badly. So first and foremost, you have got to contact your senators -- the nominees are before them -- and say, "Confirm these judges."

Q: Here is where the frustration comes from listeners and readers. In California, they are going to say, "I don't even waste my time anymore. I've got Diane Feinstein and Barbara Boxer." That is what a lot of people are going to say. On the other side, you hear, "My guy's a heavyweight in there, and I've got to keep a Joe Biden in there bringing the pork back home, even though he's way too far to the left." How do you fix a system that is so systemically corrupted and broken?

A: I would argue that first, you've got to understand what the issue is about. We've just talked a bit about that. Second, you've got to realize the priority of this issue. Some issues are simply more important than others. I don't care what political or legislative issue you care about, whether it's civil rights, pornography, social issues, economic issues, criminal justice, anything. Judges will tell you what the law means. Judges will have the last word on any issue affecting you, your family, your kids and your communities. Therefore, the kind of judge that sits on that bench is more important than any other political issue. They just had this huge deal about campaign finance reform. Judges are going to decide what happens on that issue.

Q: In one of your recent columns in WorldNetDaily, you made reference to the recess appointments. Everybody does this. Eugene Scalia and Otto Reich -- how big a deal was that?

A: It was big for a couple of reasons. No. 1, it was big because it was necessary. Usually, the Senate gives the president the biggest amount of room when it comes to executive branch appointments -- his own team. Eugene Scalia, who is the son of Supreme Court Justice Antonin Scalia, was nominated to be solicitor over at the Labor Department. Otto Reich was nominated to be an official over at the State Department. The fact that the Senate was stalling and refusing to confirm these people ...

Q: And for really petty reasons, too!

A: In the case of Eugene Scalia, the Labor Committee had already approved his nomination, and a majority of the U.S. Senate supported him -- even several Democrats. So here you had not somebody who only had a little bit of support, you had somebody who the majority of the Senate supported. But Tom Daschle would not bring his confirmation up for a vote unless there were 60 votes to break a filibuster. That's not the way presidential appointments to his own policy-making positions are supposed to work.

Q: Daschle did exactly the same thing on the stimulus package back in December.

A: He did it on the stimulus package. He did it on the energy bill. Tom Daschle is single-handedly trying to be the Senate, not just be the majority leader. So the fact that the president thought it was necessary to do the recess appointments is what is remarkable here. I personally believe that the Constitution makes those recess appointments even more of an emergency thing and more of an emergency exception. But then, like we were saying before, when the framers of our Constitution and the founders of our country assumed there would be statesmen in charge, they also assumed that the different branches of government would be operating constitutionally.

Q: So they would be considering facts that are no longer in evidence.

A: Exactly right. And since they are not, desperate times require desperate measures, I guess.

Q: I was recently talking with David Horowitz about the hypocrisy of people on the left. Don't these guys recognize in themselves the unbridled hypocrisy? I mean, to the Democrats, the filibuster is supposed to be something evil and to be condemned. Ted Kennedy has ranted ad nauseum about it. It seems like it is the new tool of Daschle for when he can't get his way, or, God forbid, when there are enough votes for something to pass with a simple majority.

A: I've worked with delinquent teen-agers for the past 15 years, and I see a lot of parallels between delinquents and people who are in the Congress here in Washington, D.C. Delinquent teen-agers will do what they want to do the way they want to do it until they are stopped. They'll keep pushing. If they don't get any resistance, they'll push some more. When Pat Leahy said a few years ago, condemning filibusters against nominees, "I don't remember a judicial nominee being filibustered ever," I went back and checked the facts. He voted to sustain filibusters against Reagan nominees to both the U.S. District Court and the U.S. Court of Appeals. But do you think a single Republican senator said so in public, on the floor? And they said they called him on it. No. Therefore, since he meets with virtually no opposition, no resistance by other members of the U.S. Senate, he will keep going further and further. If hypocrisy works, he's going to use it.

Q: The big lie?

A: Yes, and there are so many of them going around Washington on this business of judicial appointments. We started at the top talking about whether or not Republicans really did obstruct Democratic nominees.

Q: I didn't realize that Clinton actually got 374 to 1. I didn't know it was that much.

A: And that's only five short of the record. Think about it: Bill Clinton and Ronald Reagan were both in office for eight years, both had Republican Senates for six years and they appointed essentially the same number of judges. A Republican Senate apparently did as much for Bill Clinton, a Democrat, as they did for Ronald Reagan, a Republican. Where is the obstruction? I have created what I call the "Confirmation Obstruction Index." It takes the average number of judicial vacancies over a given period of time ...

Q: Please tell me you have this in text form somewhere.

A: We have it up on our website at www.JudicialSelection.org. We have a judicial statistics sheet. I'll be doing more with this; I've just developed it. It takes the average number of vacancies, let's say over last year, and it divides it by the number of confirmations for the year. If you have high vacancies and low confirmations, you are going to get a high obstruction score.

Q: So? Give it up! What do the numbers show?

A: It turns out the Democrats' obstruction score for last year is 20 percent higher than the worst year Republicans had when Bill Clinton was president.

Q: What about a broader sampling?

A: When you go back over the last dozen years when Democrats ran the Senate under a Republican president, their obstruction score is 30 percent higher than when Republicans ran the Senate under a Democrat president. There's just no way of getting around the facts. It boggles my mind why Trent Lott, the Republican leader, doesn't stand up and tell the truth. They are getting pummeled about this, and since they were not obstructionist in the first place, they might as well stand up and say, "Hey, folks, here's the real story."

Q: You had a great quote on your website from a Democrat, Sen. Patrick Leahy. This is what they say, not what they do: "A president should be given a great deal of latitude on who he nominates to the federal court. If we disagree with the nomination, then we can vote against it. But frankly, Mr. President, not only does it damage the integrity and the independence of the federal judiciary by just holding judicial nominations hostage where nobody ever gets to vote on them, but I think it damages the integrity of the U.S. Senate." Go figure! There is something that Patrick Leahy said that I agree with.

A: And I would encourage people to go to that site, because we have a whole database of statements like that by Democratic senators and by left wing interest groups. Take what they have said in the past and use it today. Call or write Sen. Leahy, put that in your letter or e-mail and ask him, "You said this then. What are you saying today?" Leahy said there was a judicial vacancy "crisis" when there were 50 vacancies.

Q: How many do we have now?

A: Today, there are 97. Now, I'm a lawyer, but I can still pretty much do basic math. Ninety-seven is just about twice as much as 50, and yet it's Patrick Leahy who will not give hearings to most of George W. Bush's nominees.

Q: OK, you are there. You are in the beltway. Have you ever asked Sen. Leahy about this?

A: We have done so in writing. I hosted a legal-affair program on television for eight years, and we did so on the air. We urge citizens to do so.

Q: He ignores you?

A: He ignores us. But we have also encouraged his fellow senators, Republican senators, to do this. It just seems to me that the best weapon against the blockade is the statements of these Democratic senators themselves. They are waiting to be used. We just have to get more and more people aware of them, more and more people knowing what they are.

Q: Have any of them attempted to defend the indefensible? Leahy said this -- does he come out now and say, "I was wrong."?

A: No. What he will do is he will turn and say, "Republicans did this, Republicans did that." It's the typical response: If you don't have a defense for the topic at hand, then you change the subject. Unfortunately, Republican senators are letting him get away with it. You played a commercial about our immigration policy and our unprotected borders allowing anybody in. In the middle of the country, the U.S. Court of Appeals includes Michigan, Ohio, Kentucky, Tennessee. Eight of the 16 seats on that court are vacant. It is a 50 percent vacancy rate. Of the eight full-time judges, six are Democrat appointees. One of them, appointed by Bill Clinton, just ruled that illegal immigrants, people who do not even have a legal right to be in this country, have virtually the same constitutional rights as U.S. citizens. The worst things that are happening to our society and our culture are coming from the judges.

Q: Some argue that Jim Jeffords bears a heavy burden for what is and isn't happening in the Senate right now. His party switch effectively gave Tom Daschle the hammer to pound on the administration and the Republicans.

A: In some practical sense that is true, although Democrats were running the judicial confirmation process before they became the majority. Sen. Orrin Hatch, who was chairman when Republicans were in the majority, had nomination hearings scheduled. Democrats prevented those hearings from taking place by walking out and preventing quorums and that kind of stuff. And they were running it even years before when Trent Lott was the majority leader. So there are practical changes that happened when Democrats became the formal majority, but as far as confirming judges goes, they have been in the driver's seat for a long time.

Q: When the Dems do real sleazy stuff like that -- walking out to deny a quorum or whatever -- is there any kind of oversight or disciplinary action that can be taken, or are they gods?

A: Whether there is internally or not, of course, these are all little petty tyrants, and they want to preserve for themselves freedom to pull a stunt like that when they may want to do it later. When it comes to the process of selecting judges, there's all this patronage that goes on, for example. Senators get to recommend people for nomination. Today, it might be Republican senators recommending friends to a Republican president. Two years ago, it was Democratic senators recommending their friends. So they don't change the system, because they all want to take advantage of it. There may be some things internally that can be done, but they are not going to do it because they all may want to pull that kind of stunt in the future.

Q: I looked at your website and under "Committee Hearings for Pending Judicial Nominees" -- 11 percent. If the Democrats are going to stonewall, why deny those 89 percent a hearing? Why not have a quick dog-and-pony show and go through the motions: "No. No. No. ..."?

A: It is easier not to have to cast any vote. This is why Tom Daschle prevents votes on the energy bill, prevents votes on certain nominations and prevents votes on the stimulus package. Because Democrat senators don't want to cast votes on any of this stuff. It's easier to keep something on the shelf by just keeping it on the shelf. There will be pressure to hold hearings, then they'll hold a few. Then they'll wait awhile before they hold a committee vote. Then they'll wait awhile before they hold a full Senate vote. There are just ways at each step in the process to delay and obstruct, and they'll use each one of those steps to their advantage.

Q: I looked at your chart for "Judicial Nominees Confirmed During a President's First Year." Reagan leads the pack with 91 percent; Bush, the elder, had 62 percent; Clinton had 57 percent; and G.W. has 43 percent. Is there any opportunity or recourse for payback over something like this?

A: There is if Republican senators do it.

Q: If you're counting on them to have the guts to actually do something demonstrative, don't hold your breath.

A: Either voters are going to have to keep that detail or a tab on what their senators do and take notes until the next election, or Republicans -- since they've got a Republican president, and this is being done to their president's nominees -- are going to have to participate in some of that internally. However, the numbers you mentioned tell the real story. When Democrat say that Republicans obstructed everything last year, Democrats gave president Bush the lowest confirmation rate in the last 20 years. You can't get around those facts.

Q: Additionally, we haven't yet noted that President Bush sent more nominees to the Senate than the last six presidents.

A: Absolutely. He did his part by funneling dozens and dozens of nominees to the Senate. So they had more to pick from, and they still confirmed less.

Q: Daschle has developed his standard finesse, which he has used several times. We have had situations with Eugene Scalia, Otto Reich, the stimulus package and other things where if the Senate just brought the questions to a vote, they would pass with a majority. You have a bipartisan majority that will vote in favor of a nominee or an issue. Yet Daschle raises the bar by saying unless there are 60 votes to kill a filibuster -- that's presuming someone is going to precipitate a filibuster.

A: And, frankly, people do complain rightly that many times when legislatures vote, they do not reflect the will of the people. But we ought to at least hold votes. The democratic process should at least operate. Here you have one senator, the majority leader, saying, "I am going to decide what is going to come up. I am going to decide what is to be voted on," even when we know that things will in fact pass the Senate -- legislation that is popular in both houses, nominations that have the support of the full Senate -- and one man is holding it up. Unfortunately, you have a whole bunch of Democratic senators who want to run for president in 2004, and they are manipulating the process to set up themselves and to frame issues that they think they can benefit from.

Q: I think that Daschle hurts himself with every one of these posturing ploys, particularly when he has leading Democrats -- like, recently, Joe Biden -- come out against him. When Daschle ranted against the "axis of evil" comment by Bush in an effort to vilify the president, Biden came out and said, "I don't have any problem with that."

A: But you see, he's focus-grouping. Tom Daschle will make a comment like that, and it's like a trial balloon. It goes up, and he sees what the reaction is. He puts his finger to the wind. He sees how that plays, especially among Democrats, because to get the nomination he has to cater to the left wing of the party. It's just this long process. John Edwards of North Carolina, a Democratic senator, wants to be president. He's on the Judiciary Committee and was the lead attacker against Judge Pickering. Same thing: he's catering to the abortion crowd, he's catering to the far left of his party. This process is not being done honestly to evaluate nominations, to honestly access the merits of legislation. There are all these other political agendas that are getting in the way. People have to understand how politics works here in Washington if there is any hope of changing it.