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Judging Judges

A discussion about how President Bush's judicial nominees will fare in the new Republican-controlled U.S. Senate.

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  • KWAME HOLMAN:

    Strom Thurmond of South Carolina, who turns 100 next month, retires from Congress when the current session adjourns. And the Senate, in which he has served since 1954, is poised to give him a parting gift.

  • SEN. ORRIN HATCH:

    I'm glad that today this body, or at least by tomorrow, hopefully, we'll be able to give Strom Thurmond the only thing he's asked of us as a last request in return for his service: The confirmation of his former chief counsel, Judge Dennis Shedd, who is himself a wonderful, decent man.

  • KWAME HOLMAN:

    Dennis Shedd, a federal judge in South Carolina, was nominated by President Bush in may of 2001, for appointment to the Fourth Circuit Court of Appeals which sits in Richmond, Virginia. However, the Democratic-controlled Judiciary Committee repeatedly delayed action on Shedd's nomination. Last month, Thurmond, himself a member of the committee, made a rare appearance on the Senate floor to protest.

  • SEN. STROM THURMOND:

    I rise today to express my outrage at yesterday's proceedings in the Judiciary Committee. In an unprecedented move, Chairman Leahy violated committee rules and removed the nomination of Judge Dennis Shedd from the agenda. Chairman Leahy assured me on numerous occasions that Judge Shedd would be given a vote. In my 48 years in the United States Senate I have never been treated in such a manner.

  • KWAME HOLMAN:

    The chairman, Vermont Democrat Patrick Leahy, wasn't on the floor at the time Thurmond spoke, but Assistant Majority Leader Harry Reid was, and he stood in Leahy's defense.

  • SEN. HARRY REID:

    Over the past weeks, this committee– led by Chairman Leahy, who has done such an outstanding job — this committee has received hundreds of letters from individuals and organizations, both in and out of South Carolina, expressing concerns about elevating Judge Shedd, and these letters raise serious issues. State legislators from Delaware, North Carolina, South Carolina, and Maryland, have written with their misgivings about the elevation of Judge Shedd. And hundreds, perhaps now thousands of letters from South Carolina citizens have been arriving that urge a closer look at Judge Shedd's fitness for this job.

  • KWAME HOLMAN:

    There was nothing more to report on the nomination of Dennis Shedd until last week; that's when Chairman Leahy announced the Judiciary Committee, during its final meeting, would vote on Shedd, and on the appeals court nomination of Michael McConnell, a Utah law professor. On Thursday, the committee approved both nominees, by voice vote. Chairman Leahy's decision to voice vote approval of the President's two nominations was seen both as a parting gift to Senator Thurmond and as a peace offering to Utah's Orrin Hatch, who as a result of the elections will become committee chairman in the new Republican-controlled Senate. Still, committee Democrats were able to express their opposition to Shedd, recording their opinions after the vote was taken.

  • SEN. PATRICK LEAHY:

    We have before us a nomination of the United States district court Judge Dennis Shedd of South Carolina, to go to the Court of Appeals for the Fourth Circuit.

  • KWAME HOLMAN:

    This afternoon Chairman Leahy opened debate on the Shedd nomination before the full Senate, with a vote expected tomorrow.

  • SEN. PATRICK LEAHY:

    His record as a whole raises serious concerns about whether he should be elevated to a court that is only one step below the U.S. Supreme Court.

  • LARRY JOHNSON:

    To date, the judiciary committee has received 130 judicial nominations from the president. It has voted on 103 of them, and approved 100. The full Senate has approved 99 of them.

  • MARGARET WARNER:

    Joining us now to discuss what the elections will mean for all the presidents' judicial nominees are Ralph Neas, president of People for the American Way, a liberal advocacy group, and Michael Schwartz, a vice president of Concerned Women for America, a conservative advocacy group of women and men. Welcome, gentlemen.

    Ralph Neas, late last week when the Judiciary Committee let this nomination through, you and your group protested, just even letting his name come to the floor. Why?

  • RALPH NEAS:

    We believe that Dennis Shedd has an astonishingly bad record. In his ten or eleven years as a district court judge he's been consistently hostile, insensitive to the rights of minorities, women and people with disabilities. On a number of issues in particular that came out during the hearing, he was asked, for example, there have been dozens and dozens of plaintiffs, civil rights plaintiffs, who have come before your court, have any of them been successful at the end; he couldn't come up with one example where a civil rights plaintiff won.

  • MARGARET WARNER:

    But Chairman Leahy's spokesman said afterwards it was going to happen anyway, meaning that come January the Republicans would control the Judiciary Committee, could no longer block nominees from getting to the floor.

  • RALPH NEAS:

    The problem that we had with the Judiciary Committee vote was that when you have a controversial nomination, and this is a very controversial nomination, it will be a very close vote on the Senate floor, there should be not a voice vote but everyone, the American people are entitled to say who is voting for whom and on what basis. And apparently there were nine votes against Shedd. I'm not even sure he had a majority on the committee to get reported out. So we said the American people have a right to know. And we don't think that the committee acted responsibly in voting out by voice vote, as they did with Michael McConnell.

  • MARGARET WARNER:

    Did you think the committee action seemed inappropriate?

  • MICHAEL SCHWARTZ:

    No, I think it was a direct response to the election. The strategy that the Judiciary Committee and the Majority Leader had been playing for the last year and a half was a wrong strategy, it was wrong in principle and it back fired on them. And that was a strategy of freezing nominees and giving Mr. Neas and his colleagues an opportunity to manufacture public opinion against them. And, you know, Dennis Shedd was nominated to this position a year and a half ago. And the elections came out the way they did and the Judiciary Committee said, well, that didn't work. Let's let the Senate vote on this guy.

  • MARGARET WARNER:

    So what do you think – if Dennis Shedd could get to the floor even before the Republicans take over, what is it going to mean for the president's nominations once the Republicans control not only the floor but the committee?

  • MICHAEL SCHWARTZ:

    I think what it means is that nominations will be dealt with expeditiously. The President before the election laid out a framework, and that was he would like judges to give him or his successors advance notice on their plans to retire. The President would nominate somebody within 90 days and he would like to see the Senate act within 90 days. If that pattern is followed, then we won't have these Armageddon-like battles every time there's a nomination. We'll have a reasonable prospect most of the time and most judicial nominations will be voted on after due consideration. And six months is plenty of time to consider this.

  • MARGARET WARNER:

    What do you think the election is going to mean?

  • RALPH NEAS:

    Let's correct the record first, Margaret. As the report indicated, 100 nominations have already been confirmed, a rate of six per month, 50 percent higher than the previous 20 years under three different Presidents.

  • MARGARET WARNER:

    Okay but now look ahead.

  • RALPH NEAS:

    The circuit court is the second most important court in the country, 29,000 cases per year. This is the court of last resort for most Americans. Environmental rights are at stake, abortion rights are at stake, civil rights, consumer rights, religious liberty. This is really important in the daily lives of every American, their children and their grandchildren. What does the election mean? There's certainly no mandate to turn back the clock on reproductive rights and privacy and on civil rights and the environment. Will it be more difficult to successfully oppose a right wing nominee? Yes it will, but not impossible to defeat those who are extreme. And I would hope that Senate Democrats and Senate moderate Republicans will vote by majority vote those who would turn back the clock, and that includes, if necessary, when necessary, using a filibuster, there is that much at stake. Over the next year or two the fundamental rights and liberties of so many Americans, all Americans are going to be determined in the Senate Judiciary Committee, the Senate, and the American people should take this very seriously.

  • MARGARET WARNER:

    What is the conservative community looking for, Mr. Schwartz, from the President in terms of his nominations?

  • MICHAEL SCHWARTZ:

    I think we're looking for the kind of nominations President Bush has made so far, people who have excellent credentials and qualifications. Judge Shedd, for example, has served as a sitting judge in a federal district court, had excellent experience before that. People who have an inclination to respect the law and to recognize that their job as a judge is to apply the law to the cases before them, not to throw out the laws they don't like and change a law in the image they wish it were, and that really is the fundamental difference I think between a conservative judicial philosophy and a liberal judicial philosophy. We are not interested in a results-oriented and outcome-based judiciary. What we want is an opportunity for a fair trial.

  • RALPH NEAS:

    The reason that Priscilla Owen and Charles Pickering were rejected is that –

  • MARGARET WARNER:

    Two of the nominees –

  • RALPH NEAS:

    Two of the nominees so far, precisely –

  • MARGARET WARNER:

    By the committee.

  • RALPH NEAS:

    — by the committee, precisely because they were allowing their ideology to trump their responsibilities as judges. They were interpreting the law the way they wanted to do so.

  • MICHAEL SCHWARTZ:

    That is completely unsubstantiated, Mr. Neas; I've read your Web site attacks on both of these judges, and for the most part what you seem to have against them is that Judge Pickering was a devoutly religious man, and Justice Owen agreed with the law six times.

  • RALPH NEAS:

    I didn't interrupt you when you were talking. These reports are replete with documentation. More importantly the president's labor — Alberto Gonzalez eleven different times in eleven different opinions said that she was an activist who was allowing her ideology to trump her responsibilities as a jurist. We have to oppose the judges that President Bush wants if he continues to appoint judges in the mode of Scalia and Thomas. They have a fundamentally different interpretation about how the Constitution has been interpreted over the last 60 years. They want to overturn Roe versus Wade; they want to eliminate protections for the environment, civil rights, consumer protections, and religious liberty. That's what is at stake. It's a monumental battle over the role of the federal government and how the Constitution is going to reinterpret it. That's the debate, we need that debate.

  • MARGARET WARNER:

    And Mr. Schwartz, we've heard Mr. Neas say a couple of times now which issues he thinks are a stake. Which issues do you think are at stake?

  • MICHAEL SCHWARTZ:

    I think the existence of constitutional government is at stake. We have a legislative branch that is supposed to decide what the laws are, in collaboration with the executive branch which is supposed to implement those laws, and a judicial branch that is not supposed to decide what the laws are, but is supposed to apply those laws to specific cases. That means that when there is a case in controversy, it's not the law that should be on trial, it is the application of the law to the facts before the court. And that's the fundamental difference.

  • MARGARET WARNER:

    But what do you say to Mr. Neas and others on the liberal side that say what we're really talking about here is civil rights, women's rights, rights for the disabled?

  • MICHAEL SCHWARTZ:

    No, we're not. After all, civil rights, women's rights, rights for the disabled are part of the law. The question is how these laws will be applied to the cases that are brought before our courts. What we want is the laws that are written, the laws that are on the books, to be applied to the cases that are presented to our courts. Not for courts to be chucking these laws out and saying here not good enough, they ought to be better.

  • RALPH NEAS:

    Margaret, do you know what the Rehnquist court has done over the last six years? It has on 33 separate occasions said that Congress was wrong in passing a particular law, that it exceeded its jurisdiction. The Supreme Court is usurping the legislative prerogatives of the Congress. And that's going to be one of the big issues when the Supreme Court nominations come up, because I believe a majority of the Senate will say, listen, we're not ready to turn back the clock, we do believe in Roe Versus Wade, we do believe in strong civil rights and environmental protections, and we certainly believe as Senators that the Supreme Court should not be substituting its legislative judgment for the judgment of the United States Senate.

  • MARGARET WARNER:

    Mr. Schwartz, what advice would you give the White House and the president, if we turn to the Supreme Court nominations, if we expect that he might certainly get the chance to name one or more, in terms of how far to one side of the spectrum he can afford to go given the politics? I guess I'm asking for your political judgment here.

  • MICHAEL SCHWARTZ:

    My political judgment is that President Bush's nominees so far have been outstanding people, very well qualified, with excellent records, as judges. And if he continues to work in finding judicial nominees of the quality that he's presented to the Senate so far, the country will be in much better hands than it has been.

  • MARGARET WARNER:

    Philosophically, though, is what I'm also asking you.

  • MICHAEL SCHWARTZ:

    Philosophically, we want judges who understand what the role of the judge is, which is not to be a super legislator, but rather to respect the laws that are duly enacted by the Congress and by the states and to apply them to the cases fairly.

  • RALPH NEAS:

    I hope that President Bush with respect to the Supreme Court and with respect to the circuit courts will consult with Democratic and Republican Senators. Bipartisanship, consensus, compromise, that's what we should be hearing. Unfortunately he owes the religious right and its allies big time for becoming president of the United States, he has promised them judges and justices in the mode of Scalia and Thomas. Unfortunately I'm afraid he is going to fulfill that promise, and unfortunately I think we're going to have probably a couple major Supreme Court battles, maybe in the next seven or eight months.

  • MARGARET WARNER:

    Do you think the President feels bound or in any way beholden or whatever words Mr. Neas used to address the concerns of groups like yours on issues?

  • MICHAEL SCHWARTZ:

    I think that Justice Scalia and Justice Thomas are very good judges, and so does President Bush. I don't think President Bush thinks that he has to come and ask permission from organizations, is it okay if I do this. President Bush knows what he wants, he has philosophy and views of his own, and his philosophy is one of judicial restraint. He wants judges who respect the law, unlike some of the people who are on the court now.

  • MARGARET WARNER:

    A brief final comment from you, Mr. Neas, what would be your advice to Democrats? I mean, can they pick fights over every single judge that they don't like or do very have to really pick their shots?

  • RALPH NEAS:

    Well, obviously they have not, they have already confirmed about 100 judges, so they have picked their fights very carefully, they have gone after people like Priscilla Owen and Charles Pickering who have constantly demonstrated not only a right wing judicial philosophy but allow that philosophy to interfere with the responsibilities to be a judge, so I'm sure that the civil rights community as well as the Senate Democrats and some moderate Republicans will pick their fights, but we hope there won't be those fights. We hope that the President who wants to be a unifier, who doesn't want to be divisive, will sit down with the Democrats and the Republicans in compromise and work out a consensus solution to an unprecedented situation.

  • MARGARET WARNER:

    And briefly, would you advise him to do that?

  • MICHAEL SCHWARTZ:

    I have to respond to these attacks on Judge Pickering and Justice Owen. Judge Pickering was picked on because he was Trent Lott's friend, Justice Owen was picked on because — a friend of President Bush. This is political, had nothing to do with their abilities or conduct…

  • MARGARET WARNER:

    All right. Gentlemen, we're going to have to leave this debate about those judges for off the set. Thank you both.

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