By DAVID LIEBER
Staff Writer
 

Many conservatives want to end the American Bar Association's quasi-official role in advising the Senate on candidates for judgeships. Republicans, among them Utah Senator Orrin Hatch and Congressman Christopher Cox of California, Tom Delay of Texas, and Bob Barr of Georgia, contend that the ABA's liberal bias precludes it from effectively screening a candidate's "judicial temperament, integrity and professional competence." The ABA rates proposed federal judges "well qualified", "qualified", or "not qualified" after extensive interviews that are conducted with 50-100 lawyers who have worked closely in the past with the candidate in question.

One would expect that Republican allegations of a left-wing bias in the ABA's evaluating techniques stem either from A) an abundance of "not qualified" ratings by the ABA during the Reagan-Bush years or B) substantial liberal proclivities among federal judges confirmed during Clinton's tenure. In fact, neither complaint A nor B is grounded in reality.

The ABA certainly was not a barrier to the judicial makeover undertaken in the Reagan-Bush years. The ABA rated only one Reagan appointee "not qualified" and had no objections to any of the Bush appointees. Among those rated "well qualified" by the ABA are the extremely conservative Robert Bork (whose nomination failed) and Supreme Court Justice Antonin Scalia. Since 1960, only 26 candidates rated "not qualified" by the ABA have subsequently been nominated to the federal judiciary, and 23 of these "not qualified" candidates were nominated by Democratic presidents.

Two independent studies, one conducted by the magazine Judicature and the other conducted by professors from the Universities of South Carolina, Houston, and Appalachian State, concluded that President Clinton's appointees are generally moderate (they're also very wealthy). The study conducted by the university professors concluded that federal district judges appointed by Clinton rendered liberal decisions 46% of the time, while federal appellate judges appointed by Clinton rendered liberal decisions 36.5% of the time.

Former Reagan Attorney General Ed Meese asserts that a philosophy embracing the notion of judicial restraint (and not the professional credentials of a candidate) is the most important factor in determining whether a particular individual is qualified to serve on the federal bench. Supporting judicial restraint (and thus eschewing judicial activism) is a nice way of saying "Don't overturn the decisions of the legislature, particularly when those decisions are conservative."

Here's a hypothetical situation illustrating the difference between what legal scholars call judicial restraint and judicial activism: a gay couple from Maine files a lawsuit in federal district court seeking judicial relief from the Maine legislature's enactment of a law banning same-gender marriages. An advocate of judicial restraint accords deference to the decision of the legislature as the lawmaking authority, and upholds the ban.

A more thorough analysis of the issues with such a case, however, would reveal that the Supreme Court of the United States has declared marriage a "fundamental" right guaranteed by the 14th amendment. A state that wishes to encroach upon that fundamental right must have a "compelling governmental interest" for doing so. The state of Maine has yet to offer a compelling reason why gay people should be denied the right to marry. Therefore the ban on same sex marriages is unconstitutional. Critics often label this type of legal reasoning, which often questions the legitimacy of a legislative decision, "judicial activism".

Mr. Meese might be surprised to discover that he himself was complicit in the appointment of an activist judge to the Supreme Court. A recent study by the Libertarian Institute for Justice found that Anthony Kennedy, who was at the helm of the Justice Department, voted to set aside the decision of the legislature in over 85% of cases; Justices Ruth Bader Ginsburg and Stephen Breyer, both appointed by Clinton, voted to set aside the decision of the legislature in 35% of cases.

The backlash against "activist" judges in federal courts is manifesting itself in strange ways. In an appearance on CNN's confrontational show Crossfire, Congressman Barr trumpeted the "We the People" phrase of the Constitution to suggest that the Constitution confers upon Congress the power to override decisions made in federal courts. Some judges, Barr argues, are flagrantly usurping legislative power by refusing to defer to legislative determinations.

Among the decisions Representative DeLay cites as abuses of judicial power is the preliminary injunction granted by Judge Thelton Henderson to prevent the enforcement of Proposition 209 in California, which would prohibit state-sponsored affirmative action. Judge Henderson prevented the enforcement of Proposition 209 because he believed it could be unconstitutional. But some conservatives contend that judges should exercise judicial restraint when the people of California have spoken through a referendum such as Proposition 209; the decision rendered in this case is thus a perfect example of judicial activism to many conservatives.

There are "activist" decisions, however, that you won't hear DeLay and his colleagues denounce. Cheryl Hopwood, a white female denied admission to the University of Texas Law School, sued the university (as an agent of the state) over its race-conscious admissions policy, a policy implicitly endorsed by Texas' legislature. A federal district judge in this case ruled that race cannot be a factor in the admission of law school applicants. The decision flies in the face of legal precedents, including the landmark Supreme Court case Bakke vs. California Regents of the University of California at Davis, which explicitly stipulated that race could be a factor in the admission of candidates to institutions of higher education.

A federal judge in Oregon overturned a state initiative that allowed physician-assisted suicide. The legal determination made by the judge in this case conflicted with the wishes of Oregon citizens in the exact same way that Judge Henderson's decision conflicted with the wishes of California citizens. Both are examples of "judicial activism." What distinguishes the decision made by the judge from California was that the decision rendered was liberal, a big no-no when Republicans preside over Congress. The concern among conservatives thus is not the philosophy which guides the decision making process (judicial activism), but rather the substance of the decision itself (California can't ban affirmative action).

What should not be lost in this fray of legal mumbo jumbo is that many conservative decisions are decidedly "activist" as well. The federal district court's decision to prohibit the use of race in institutions of higher education establishes a new policy for the entire district within its jurisdiction. The sovereignty of Louisiana, (as well as Texas) which falls within the jurisdiction of the court which decided Hopwood, is compromised. Hopwood commands Texas and Louisiana schools receiving state financial assistance to adhere to a policy created not by experienced educational leaders, but by distant legal observers.

Many conservatives decrying the perceived proliferation of "activist" judges seem annoyed by its persistence only when the decisions rendered are liberal. When judicial activism engenders liberal decisions, conservatives have not been tolerant. Indeed, many of them have called for the recall, and yes, even the impeachment of liberal federal judges.

Subjecting federal judges to recall or impeach on a legislative whim would throw the doctrine of separation of powers into chaos. More importantly, the judiciary has curbed the excesses of various legislatures at important moments in American history, protecting cherished civil rights and liberties.

Even entertaining the idea of impeaching justices for what might be construed as liberal or "activist" decisions compromises the independence of the judiciary that the Constitution fosters. While Madison clearly intended the judiciary to be the weakest branch of government, they did not believe that the judiciary ought to be powerless. The embryonic justifications for judicial review (the right of courts to rule on the constitutionality of legislative acts) can be found in Federalist 78.

Conservatives who accuse "activist" judges of injecting politics into legal decisions and straying from a literal interpretation of the Constitution ought to heed their own advice when they suggest that "judicial activism" is grounds for impeachment. The Constitution stipulates that judges can only be impeached for "high crimes and misdemeanors."

Ask one of the conservative Congressmen ostracizing judicial activism which decisions they denounce and which judges they deplore -- chances are, you'll find a liberal behind every one of them. The message to federal justices from the right is clear -- we don't mind politics entering your decisions as long as you embrace our politics.