TOPICS > Politics

Judicial Review

April 24, 1996 at 12:00 AM EDT


MARGARET WARNER: The issue of judicial appointments was injected into the Presidential campaign this month when Bob Dole, the putative Republican nominee, called for the impeachment of a Clinton-appointed judge. Last Friday, Dole attacked the President’s appointments to the bench again. We begin with those remarks to the American Society of Newspaper Editors.

SEN. BOB DOLE, Majority Leader: (April 19) We go across America and you mention the courts and you mention conservative or liberal judges, I can tell you that people respond. The legal guard rails that protected our society, that ensured a certain fundamental level of security and safety for American families, those guard rails have in many places been knocked down and even dismantled often by the very judges and jurists who have been entrusted with the sacred duty of upholding the rule of law. And many of the judges Mr. Clinton has appointed to the federal bench are precisely the ones who are dismantling those guard rails that protect society from the predatory, the violent, and the anti-social elements in our midst.

His appointees to the Supreme Court have been among the most willing to use technicalities to overturn death sentences for proved murderers. They frequently vote to grant last minute stays of execution, even when the Death Row inmate’s claims are plainly frivolous. And a startling number of Mr. Clinton’s lower court judges have demonstrated an outright hostility to law enforcement.

And if President Clinton has four more years and appoints just one more justice to the Supreme Court, we could have the most liberal court since the Warren court of the 1960’s. We could lock in liberal judicial activism for the next generation and the social landscape could be dramatically changed: More federal intrusion into the lives of average Americans, more centralized power in Washington, less freedom of religious expression, more rights for criminals, and more arrogant disregard of the rights of law-abiding citizens.

MARGARET WARNER: For more on this, we turn now to Anthony Lewis, columnist for the “New York Times,” and Clint Bolick, litigation director of the Institute for Justice. Clint Bolick, what’s the basis for these charges that Sen. Dole is making about President Clinton’s judges, the ones he’s appointed?

CLINT BOLICK, Institute for Justice: Well, President Clinton already has appointed a quarter of the federal judiciary, and judges have an impact. Certainly there have been some very good decisions by Clinton judges and there have been some very bad decisions by Reagan and Bush judges, but by and large, as I found in a study I did for the Goldwater Institute in Phoenix recently, Clinton judges are more liberal. This should not surprise anybody because Bill Clinton is a fairly liberal President. This has real world ramifications in areas of criminal law, civil rights, civil liability, and so it is–the power to appoint the third branch of government is one of the most awesome powers the President has and, and Bob Dole, many of the points he makes are extremely valid, especially regarding the Supreme Court and which the conservative majority hangs by the balance of a single vote.

MARGARET WARNER: When you say liberal, what do you mean exactly?

MR. BOLICK: Well, in criminal cases certainly the overwhelming majority of decisions would be decided the same, regardless of who appointed a judge. But in controversial or close cases, the Clinton judges are much more likely to side with criminals and criminal defendants than Reagan and Bush judges, and this has happened repeatedly. It’s striking how often it happens. And in one court that I looked at, the Fourth Circuit Court of Appeals of Richmond, in, in hotly contested criminal decisions, the non-Clinton judges sided with criminal defendants 40 percent of the time, the Clinton judges 86 percent of the time.

MARGARET WARNER: Tony Lewis, what’s your assessment of these charges and the evidence that Mr. Bolick’s just laid out?

ANTHONY LEWIS, New York Times: (Boston) Well, the charges that Sen. Dole made don’t bear much resemblance to the rather recent statement of Mr. Bolick. He’s quite right–judicial appointments are a very important power of the President, and so on. But Sen. Dole’s charges were simply wild. Judges are the root cause of crime. Nobody can believe that. That’s absurd. And many judges are sworn enemies of law enforcement, or what was his phrase, outright hostility to law enforcement? Please, I don’t think any judge would think that of his colleagues no matter who it was. It’s an absurd thing.

Now as to just one thing I might take exception to in Mr. Bolick’s statement. He puts it in terms of siding with criminal defendants. Well, of course, we have something called the Constitution. So the judge who, who decides on whether a particular clause of the Constitution, say a clause guaranteeing the right to counsel or a clause guaranteeing due process of law or forbidding unreasonable searches and seizures, he doesn’t think or she doesn’t think of that in terms of being for the criminal defendant who most judges dislike, and they decide an overwhelming proportion of cases against criminal defendants. It’s simply they may have a different view of what that clause of the Constitution means. So it’s a little unfair to put it in terms of siding with the criminal defendant.

MARGARET WARNER: Does he have a point? Does Mr. Lewis have a point?

MR. BOLICK: Well, there are very important protections of liberties in the Constitution, and I think this is a very, very delicate balance, but the, the expansive reading of criminal defendants’ rights in the Constitution does have very serious ramifications for society. For example, just to give you one example of one of the decisions that I looked at, in a criminal case where a number of people were being charged with assault, murder, and lynching, the defense lawyer made an error and showed some photographs to the jury that were not admitted into evidence. The judge declared a mistrial. When the prosecution sought to try them again for this same offense, it was struck down under double jeopardy. The deciding votes in that case were Clinton judges. Just as Anthony Lewis said, they read a clause of the Constitution, in this case the double jeopardy clause, very, very broadly. The result is that people who may have been guilty of very heinous crimes cannot be tried for that offense because of something that their lawyer did. This is precisely the kind of technicality that real–that mainstream Americans find very appalling, and rightfully so.

MR. LEWIS: Ms. Warner, let me just respond.


MR. LEWIS: We could sit here and talk about like decisions or decisions of equally shocking character made by Reagan judges or Bush judges or somebody else. Uh, it does no good to try to pin those things on one side or the other. The truth of the matter is that something Mr. Bolick didn’t mention earlier when he said nearly 25 percent of the judges have been appointed, federal judges have been appointed by Clinton, 60 percent of the judges have been–were appointed originally by Bush or Reagan, and they were appointed, I want to tell you, in a process that deliberately chose right wing ideologues. That was the process. The striking thing about the Clinton appointments is how un-ideological they are. Most liberal judicial thinkers believe that the President’s appointments have been far too centrist, and I don’t think that myself. I think they’re about right. But they certainly are not as ideological as the Reagan and Bush appointees.

MR. BOLICK: See, here’s where we get into a good old-fashioned philosophical debate, and that’s what it ought to be about. I think that most Americans did not like what judges were doing. They were taking over school systems. They were taking over prison systems, imposing racial quotas, letting criminals out on technicalities. After 12 years of Reagan and Bush appointees, the judges got out of those businesses by and large. And now with more liberal judges being appointed, you are seeing a return to the activism that was a hallmark of the earlier courts that people didn’t like. And that’s the debate we ought to be having. Clinton, instead, is not defending that kind of judicial philosophy, but it is having a real world impact.

MARGARET WARNER: Tony Lewis, let me ask you about another point that Sen. Dole brought up which was, he said that he, if he were President, he would not longer have the American Bar Association screen judicial appointments and rate them. He said the ABA had become an advocacy organization. What’s your view of that?

MR. LEWIS: I think that’s one of the most comic lines uttered by a United States Senator in years. The American Bar Association Committee on the Federal Judiciary is very straight, rather serious, dominated by commercial lawyers and people of that kind, and always has been. I used to cover it many years ago, and I know that they’re concerned overwhelmingly–and I know how they work–they talk to lawyers in the community, they interview lawyers about prospective judges. It’s very much a nitty-gritty kind of thing, and it’s–I should say something about what Sen. Dole proposed instead, which is he would have prosecutors and victims of crime help him select judges if, if he were President.

Well, there’s a fundamental misconception there that I think is furthered by Sen. Dole’s whole speech, which is that federal judges have a lot to do with, with trying crimes in this country. Overwhelmingly, perhaps 90, 95 percent of crimes, 98 percent are tried in state courts. Federal judges have nothing to do with the run of the mill crimes in this country. They were originally there for federal specialties like patents and trademarks and enforcing the civil rights laws and deciding constitutional questions and tax laws, and those are the kinds of things that mostly the American Bar Association Committee on the Federal Judiciary deals with: Is a judge competent? Is a prospective nominee competent to deal with that kind of question?

MARGARET WARNER: What’s your assessment of this ABA controversy?

MR. BOLICK: The ABA has elected in recent years to become an advocacy organization, rather than a professional organization. I resigned from the ABA a few years ago because it got involved in civil rights legislation that I disagreed with their position on it. Once it has made that choice to become an advocacy organization, I don’t think that it has a proper role in evaluating judicial nominations.

MARGARET WARNER: Let me ask you, Mr. Bolick, why do you think Sen. Dole has decided to make this a–such a high profile political issue in this campaign, and do you think it will resonate?

MR. BOLICK: Well, not being a politician, being interested in this from a, a legal perspective, umm, I can only speculate. This is a populist issue, because people don’t like what the courts used to do, umm, and it is very important in the real lives of real people, regardless of whether it’s an election issue or not, I’m really glad that people are talking about it, because the courts are very, very important.

MARGARET WARNER: Tony Lewis, what do you think is the political impact of raising this issue to this high profile?

MR. LEWIS: Let me say something first, if I may, Ms. Warner, about the larger issue here, which Mr. Bolick mentioned a while ago. It isn’t just crime. It’s the general position of judges in the system. I noticed that Sen. Dole spoke critically of the Warren court. Well, why not come right out and say that what we’re talking about here is we don’t like the court that held school segregation, officially required school segregation, required by southern state laws, unconstitutional? That’s what people don’t like and that’s the most important thing the Warren court did, along with one other thing, to hold that the unequal districting of state legislatures so that the suburbs were discriminated against was unconstitutional. Those are the two boldest things the Warren court did, much bolder than some of the things we hear about–we’ve been hearing about tonight, so I just think it’s, it’s good to put that in context.

MARGARET WARNER: Very briefly, your response. Is that a code for–

MR. BOLICK: It’s a code for racial quotas. It’s a code for forced bussing. These are the sorts of things that Justice Ginsburg, for example, seems to have stepped into the shoes of the Warren court and–

MARGARET WARNER: Ruth Bader Ginsburg.

MR. BOLICK: Ruth Bader Ginsburg.

MARGARET WARNER: His appointee to the court.

MR. BOLICK: And, uh, this court is one vote away from a very substantial swing to the left.

MARGARET WARNER: Gentlemen, we’ll have to leave it there. Thank you both very much.