Shaping the Courts
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RAY SUAREZ: Now, for more on the Pickering nomination and ideology and the courts, we’re joined by Marcia Greenberger, co-president of the National Women’s Law Center; and Thomas Jipping, Vice President for Legal Policy at the Free Congress Foundation.
RAY SUAREZ: Well, Thomas Jipping, you just Mr. Pickering refer to his personal opinion on the right to a legal abortion as immaterial and irrelevant. In this context, before a Senate confirmation, is it?
THOMAS JIPPING, Free Congress Foundation: His personal view on abortion is irrelevant. I believe that there is a fundamental distinction and there ought to be one between personal politics and judicial decisions. One’s personal views and values on issues like that might be relevant if somebody’s running for Congress or to the state Senate, as Judge Pickering had been. But when you’re moving to the judicial branch, I hope that we demand that our nominees put that politics aside and that we deal with what judges are supposed to do, which is apply the law faithfully, not rewrite or change the law to achieve a political agenda. It’s clear that Judge Pickering knows the difference. He said repeatedly today, “I know the difference between a personal decision and a judicial one.” It’s when we blur those two lines, when we insist that judges deliver ideological results or further a political agenda, that path leads to litmus tests, it leads to demanding that judges reveal how they’re going to rule, it includes taking personal views on issues and insisting that that colors, you know, their views on all kinds of issues. There’s no more reason to believe that a conservative person, somebody who’s personally or politically conservative, as Charles Pickering is, can’t be fair and impartial, as there is someone who’s liberal. But we must demand that impartiality, that nonpolitical neutral approach to issues from our judges because they’re different than politicians.
RAY SUAREZ: Marcia Greenberger?
MARCIA GREENBERGER, National Women’s Law Center: Well, the trouble is really doesn’t work that way in practice. In fact, people have very different views of what the law really is and very different views of what the Constitution is. And in deciding, in making a good-faith effort to apply the law, they bring their own perspectives about what the law is, how they view the law playing out in real terms. And I was struck by the hearing today in the misunderstanding, the fundamental misunderstanding about civil rights laws, privacy protections in our Constitution that Judge Pickering displayed in response to questions. So I was very troubled about the fact that what he saw as a clear distinction between his own personal views and his ability to apply the law really didn’t play out in the way he did interpret and did apply the law as a district court judge over the last ten-plus years.
THOMAS JIPPING: It was interesting, though, that in the… many of the questions that were asked, they… Senator Leahy did ask about some… a few individual opinions. But many of the questions that were asked whether were, again, about politics. They reached back to votes he cast as a state Senator, to his personal views. And in fact, you know, you can go back and you can have many of the harshest critics of decisions that liberal… the Supreme Court decisions that liberals like, believe personally the other way and visa versa. It is possible to be impartial, and that’s what we’ve got to at least look for.
RAY SUAREZ: But what about Marcia Greenberger’s answer to your first statement, that there is a world view that a judge brings to his or her work that grows out of their…
THOMAS JIPPING: Sure. This is neither Math nor Biology. It’s not like you put some things in a machine turn a crank and you get a judicial decision. I’ve worked for three judges. They’re human beings, too. But you won’t find what you’re not looking for. When we select judges, the goal should be that they act as judges, not as policy-makers or politicians. So we’ve got to use criteria and insist that judges do in fact make that separation, that they do in fact apply the law and believe firmly that they can’t make it up, that they can’t make it, that they can’t amend the Constitution. We’ve got to at least use that as our fundamental criterion for choosing judges. Sure, you’re going to end up with some judges that don’t necessarily follow that path consistently; that’s got to be our goal, because judges acting as judges, instead of as legislators, is an essential protection for our freedom.
RAY SUAREZ: Article II of the Constitution, Marcia Greenberger, says that judges are seated after the advice and consent of the Senate. In 2002, what does that mean? The President proposes a nominee. What happens next?
MARCIA GREENBERGER: Well, because the Senate is, in essence, representing the legislative barn branch of government, we’ve got the executive represented with the President nominating, but we’ve got the Congress represented, the legislature represented in their advise-and-consent role. And since George Washington’s time, the Senate has looked at judicial philosophy, ideology, qualifications in exercising that role to be sure that there’s the right check and balance because it is a lifetime appointment to our third branch, the Judiciary that’s at stake. So for decades to come, for many of these judges, they will be ruling about the ability of the Executive to pass… take certain actions, the ability of Congress, the relationship with the states and my individual rights and my grandchildren’s individual rights and yours and all of us as citizens in this country.
RAY SUAREZ: But the nominee comes in, as Mr. Pickering did today, and you’ve got people elected from 50 states, they hold various political views. What part should the views that they hold play in assessing the seating of this nominee?
MARCIA GREENBERGER: Well, constitutional scholars have overwhelmingly said that the beauty of our Constitution is that they do bring their institution… Their personal political views in the best sense of that term of what the Constitution means and whether they have confidence that a particular nominee will protect our constitutional rights as a country, will act and bring that world view in a way that’s good for the country. That’s the check and balance, and that’s why it’s so important that there is this advise and consent role in the Senate.
THOMAS JIPPING: But there is such a thing as the Constitution. When a judge takes his oath of office, he takes his oath to support and defend the Constitution. It’s not any constitution or whatever constitution or the constitution he may make up one day. The law’s got to be something more stable than that, otherwise none of our rights are protected, which means it’s not just a crapshoot that judges can just do anything he jolly well please, so we’ve got to find out what their politics are because they’re all going to impose their politics anyway. These are judges, after all. Remember last year when John Ashcroft was appointed to be attorney general, groups like Marcia’s and others, Democratic Senators on the Judiciary Committee, insisted that because he was going from the Legislative Branch to the Executive Branch, his job changed. He was no longer able to just pick and choose which laws he wanted to enforce. They just said that over and over. These same people, though, seem to be satisfied with judges crossing the line and making law. Judges have to be confined to their job, just like the Executive and Legislative have to be confined to theirs.
RAY SUAREZ: But, Thomas Jipping, if a Senator who was elected, running on defending “Roe V. Wade,” let’s say, he’s sitting there on the Judiciary panel today and presumes that Judge Pickering will be a no vote on abortion rights in the future, is it legitimate for them to use that as a test?
THOMAS JIPPING: No, it is not.
RAY SUAREZ: It’s not?
THOMAS JIPPING: No, it is not because judges take an oath to be impartial. If I’m a litigant and I come before you as Judge Suarez, I’ve got to have confidence that you have not already prejudged my case, that you have not already committed yourself to a position, especially in a hearing on national television, that you’ve violated your oath before you even walk into the courtroom in my case. This leads to ideological litmus tests, demands of how judges are going to vote. Liberal organizations like the Brennan Center for Justice, one of Marcia’s organization’s allies in the alliance for justice has issued one of the strongest papers opposing ideological litmus tests because they say it violates judicial independence, it fosters — distorts the advice and consent process – it fosters partisan attacks, it trivializes judicial selection. I mean that’s the road that you go down. How are you going to determine whether that nominee fits, you know, your profile and gives you confidence that they’re going to do it, except that you demand to know, “How are you going to vote?”
RAY SUAREZ: Let me ask the same question to Marcia Greenberger. Is it legitimate to use not just “Roe V. Wade,” not just one of the hot button issues of the age, but a real ideological difference? You were sent to Washington by people who in the majority believed one way — here’s a prospective federal judge who believes another way. Is it a legitimate thing to vote against him just on that basis?
MARCIA GREENBERGER: I think it’s not only legitimate, but it is the essence of the responsibility of each Senator to be sure that they bring that sense of protecting rights to bear when they vote to confirm or deny confirmation. Let me say with respect to “Roe V. Wade,” that of course is now hanging by a thread… There are nine Justices on the Supreme Court, five supporting “Roe V. Wade,” four basically supporting its overturning in name or in fact. Now, there is clearly, with President Bush, where he was very open during the campaign that he was going to look for judges in the mold of Clarence Thomas and Antonin Scalia. Those were his models. Those are justices who are in the fore now who have said “Roe V. Wade” should be overturned. We’ve got, with Judge Pickering, for the Fifth Circuit Court of Appeals, that includes the poorest three states that we’ve got in the country, where women’s right to choose just to pick that as an example, is so fragile, someone who, when he has talked about his own world view, has said he supports a constitutional amendment that would require every state to ban abortions and criminalize them, except if the life of the woman or rape was at stake. So now we get to the question: What happens when we’ve got a case that goes up to Judge Pickering that has a very serious restriction and allows the government and the government is restricting a woman’s access to choose? It’s not…
RAY SUAREZ: What happens, Thomas Jipping?
THOMAS JIPPING: Well, he expressed that opinion and cast that vote as a state Senator 25 years ago. As a judge, he’s being nominated to be a judge, he has been a judge… He’s not running for the state Senate again. He has pledged and did today, under oath, that he will apply the Constitution and the precedents of the United States. And in fact, he’s given lots of examples to the Judiciary Committee where he’s in fact done so, where his politics would have driven him in the other direction. That’s exactly the kind of judge that we do need on the bench, someone who will apply the law even when it conflicts with their personal politics.
RAY SUAREZ: So quickly, you don’t trust in the ability to be a blank slate?
MARCIA GREENBERGER: Of course his view of what the…
THOMAS JIPPING: Marcia thinks he’s a liar, but that’s what he said.
MARCIA GREENBERGER: No, no, I don’t. I think his view of course of what the law is the $64,000 question. Yes, he thinks he’s applying the law. But will he? It’s a big risk to ask women of this country to take, to expect that his view of the law, when he is fundamentally opposed to the right, will not be restrictive. And what we saw when he himself admitted with civil rights plaintiffs who come in and complain about discrimination on the job, and he was enforcing, as a judge, the civil rights employment discrimination laws, that he was ruling against plaintiff after plaintiff, and he said it was because our Equal Employment Opportunity Commission basically was mediating all the good cases. He was very flat out wrong that it was a reflection of the fact that he couldn’t see past his view in order to be open on the court.
RAY SUAREZ: Right or wrong, the question was what bearing that would have on the votes. But I want to thank you both for being here.
THOMAS JIPPING: Thank you.
MARCIA GREENBERGER: Thank you.