Washington — There is a whiff of schizophrenia about the Democratic Party. When it comes to going to war with a dangerous man possessed of weaponry more lethal than anything the late Adolf Hitler ever had, the Democrats betray an irenic streak: all patience, conciliation and wimpery. But when it comes to going to war with fellow Americans it is WAR: show no quarter, no holds barred, take no prisoners. If the Democrats were as bellicose towards Saddam Hussein as they are towards the Republicans, Iraq would be a smoking crater.
I who believe politics is a blood sport would admire the Democrats for this pugnacity were it contained merely to political campaigns. When the Democrats extend their bloody tactics to the governance of the country my enthusiasm cools. When I see them practicing scorched-earth tactics in the area of judicial appointments I become a dove. Come on, O party of Jefferson, fill those empty federal court seats. Think of, your most generous supporters, the trial lawyers. How can they make their billions if the courts have no judges?
Senator Pat Leahy, the glabrous Chairman of the Senate Judiciary Committee, has been ferocious in holding up White House nominations to the court. He has committed the hitherto unprecedented obstruction of bottling up appellate nominees in his committee who have received the highest recommendation of the American Bar Association. The American Bar Association is the legal arbiter that the Democrats claim to consider essential to the vetting of judicial appointees and that the Republicans censure as anti-Republican. Now Senator Leahy has moved on to yet another unprecedented act of obstruction. He has broken repeated promises to give appeals-court nominee Dennis Shedd a committee vote. As the ever-reliable Wall Street Journal puts it editorially, “Refusing to vote on a nominee who has had his confirmation hearing and has been schedule for markup in committee is entirely unprecedented.”
Apparently Senator Leahy felt forced to this latest act of obstruction because Judge Shedd had attracted sufficient votes from Democrats to win confirmation on the Senate floor. This is not the first time Senator Leahy has denied a White House nominee a floor vote. He did it to Priscilla Owen and Charles Pickering Sr. In every case he and like-minded Democrats not only raised unwarranted questions about the nominees’ credentials but they also slandered the nominees with charges as extreme as racism. In Pickering’s case, the judge had the support of most of the leading blacks in his community, but Democrats still leveled on him the unconscionable epithet of racism.
What Senator Leahy and his colleagues are doing is thoroughly politicizing the courts. If they succeed the country is going to be populated with judges who have spent their whole lives with their wetted fingers in the air ascertaining which way the political winds were blowing. This, rather than doing what judges are supposed to do, applying the law.
Judges are not supposed to make law. Their personal opinions are not to enter into the judicial process. It ought not to matter what Judge Shedd thinks about political issues. His job is simply to apply laws written by the authors of the Constitution or by legislators.
The original standard that Senators were to use to scrutinize judicial appointees is a standard both liberal Democrats and conservative Republicans once agreed on, to wit: is the nominee a person of proven integrity and knowledge of the law? Judges are to apply law not to make law.
Yet for 30 years, as liberal Democrats have been able to make less and less law, owing to their diminishing popularity in the electorate, they have looked to the courts to make liberal law and to preserve liberal law against the changing will of the people. Thus they are desperate to eliminate conservatives. Conservatives will, if they are true to their principles, refrain from making law from the bench. But liberals can take no chances. They want an activist court, an activist liberal court.
Thus they grill Republican nominees on all manner of issues irrelevant to their duties on the court. The questions they ask are often as humiliating as they are irrelevant. This is American politics at its most ignominious. The spectacle Senator Leahy has presented us with, a string of distinguished men and women appearing before his committee, heads bowed, answers obsequious, is reminiscent of nothing so much as a show trial with Senator Leahy as chief prosecutor. His behavior is increasingly that of an authoritarian.