Posted on 03/26/2005 11:56:14 AM PST by UnbelievingScumOnTheOtherSide
One more reason in a long history that judicial appointments will not solve the problem of leftist judges and judicial tyranny was seen on Mar. 23, 2005, in the request for emergency rehearing of the 11th Circuit en banc of the case of Schiavo v. Schiavo when George W. Bush recess appointment William H. Pryor, Jr., voted AGAINST rehearing. Rather than joining in the cogent and spirited dissent of Judge Tjoflat or associating himself with the dissent of Judge Wilson (a Clinton appointee) in the original three-judge panel, he voted with the majority in the 10-2 denial of rehearing. Judge Pryor did so without any comment to give any insight into his reasoning for doing so. But it is sure to win a brownie point or two from some Democrats who had blocked his regular appointment to the court with a threatened fillibuster - not. It is interesting to note that although the denial of rehearing was 10-2, Republican appointees actually hold a 7-5 majority on the 11th Circuit. But six Republicans voted with four Democrats to starve an innocent woman to death on the say-so of her estranged husband rather than finding one of several legal avenues placed in evidence and the law to reach a more humane and just result.
The history of Republican appointees to the Supreme Court (SCOTUS) is likewise checkered. While Nixon appointee William Rehnquist has been a stalwart conservative for 33 years, another Nixon appointee, Harry Blackmun wrote the infamous Roe v. Wade abortion opinion for the majority. And Blackmun, along with fellow Nixon and Ford appointees Louis Powell and John Paul Stevens cemented an activist leftist court through the 1970s and 1980s. Appointees by Republicans, thought conservative, as often as not become part of the activist-leftist problem upon receiving their lifetime appointments.
While Nixon and Ford had to contend with a strongly Democrat Senate to get their appointments confirmed, Reagan enjoyed for a time a Republican Senate. Although Reagan was both a social and fiscal (in theory) conservative, his appointments to SCOTUS were one conservative, Scalia, and two increasingly liberal swing votes, O'Connor and Kennedy. George H.W. Bush achieved a similar split with conservative Thomas, who squeaked in by a narrow confirmation margin in the days before filibustering of appellate judges, and liberal David Souter. It is interesting to note that the last Democrat "mistake" to SCOTUS was the Kennedy appointment of conservative Byron White in 1962.
It is hardly going to make a positive difference in the courts for conservatives when leftist presidents and Democrat Senators apply a nearly foolproof litmus test while Republican presidents tend to appoint "qualified" judges, half from each side. The math over the last 28 years of four Republican presidential terms and three Democrat, with a nearly even divide in the Senate over that time, is for 70% leftist appointees. At that rate, if there were nothing but Republican presidents for the next 40 years, the courts would be no better than evenly divided.
The solution to the problem of runaway activist leftist courts is for Republican executives to assert their independence from judicial fiat. (You could argue that Democrat presidents could do the same, except they don't need to. - They already have the courts for the forseeable future.) Federalist #78 explains that judges are "dependent" on executives to carry out their decisions. In 1832 in the case of Worcester v. Georgia recognizing the independence of the Cherokee Nation from the laws of Georgia, Andrew Jackson disregarded the Supreme Court with the famous remark "Marshall has made his decision. Now let him enforce it." leading a few year later to the removal of the Cherokee altogether. Even in the case of Marbury v. Madison, Chief Justice Marshall explicitly recognized that he could not order President Jefferson to deliver certain commissions without being ignored due to separation of powers and thus invalidated the law requiring the delivery of those commissions instead.
What happened since those early days to separation of powers? We became accustomed to the routine condition that the executive should normally support the judiciary. Even when activist judges handed down abominable decisions such as Dred Scot in 1857, which forced slavery on the whole country, the executives after the the passing of the Founding Fathers enforced them. Of course, the President at the time of Dred Scot was a pro-slavery northern Democrat, James Buchanan, who was not going to nullify Dred Scot anyway.
The only serious way to turn back judicial activism is through the executive nullification of the most odious of judicial rulings, such as starving an innocent woman to death on dubious evidence and calling it a Constitutional Right. Judge Pryor, when he comes up for confirmation to a permanent post on the court, needs to do some serious dancing around the issue of why he did not at least make a public showing to help the dying Terri Schiavo and should quite probably be denied the support of conservatives previously so eager to see him confirmed. And conservatives need to consider ways besides judicial appointments, or the forlorn hope for impeachments in a Congress too narrowly divided and partisan to sustain them, to reign in the tyranny of our current Judicial Oligopoly.
Thank you for posting this. The problem is institutional. Our focus needs to be on supporting those who will stand up to the judiciary rather than on trying to tweak it with new judges.
And I wrote it before the In-Your-Face from the supposedly ultra-conservative Bush-41 11th Circuit appointee Birch.
Let theirs be a pyhrric victory.
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