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Politics : Impeach George W. Bush -- Ignore unavailable to you. Want to Upgrade?

To: Mephisto who wrote (2716)	4/26/2001 1:14:06 AM
From: Mephisto	Respond to of 93284

Tilting the Scales Rightward April 26, 2001 By CASS R. SUNSTEIN "Democratic senators, largely unwilling to base rejection of nominees on political disagreements, have usually deferred to Republican presidents." From The New York Times C HICAGO — In the last 30 years, one glaring difference between Republicans and Democrats has been that Republicans, unlike Democrats, have been obsessed with the composition of the federal judiciary. Presidents Ronald Reagan and George Bush had a distinct agenda for the nation's courts: to reduce the powers of the federal government; scale back the rights of those accused of crime; strike down affirmative action programs; and diminish privacy rights, including the right to abortion. They sought judges who would interpret the Constitution, and other federal law, in a way that would promote this agenda. Under President Bill Clinton, Republican senators were equally single- minded. Showing little respect for presidential prerogatives, they did whatever they could to block Mr. Clinton's judicial nominees. Sometimes Republican senators justified their actions by labeling Clinton nominees as "liberal activists." Sometimes they offered no reasons at all in refusing to schedule confirmation hearings. By contrast, Democrats have been remarkably passive. Mr. Clinton chose centrists like Justices Ruth Bader Ginsburg and Stephen Breyer. Democratic senators, largely unwilling to base rejection of nominees on political disagreements, have usually deferred to Republican presidents. The major exception was the sustained effort by the Democrats to defeat President Reagan's nomination of Robert Bork. But their success came at a high price. It infuriated and energized Republicans. Yet it chastened the Democrats, who feared seeming obstructionist and who became more passive in its aftermath. The result? We are now in the midst of a remarkable period of right-wing judicial activism. The Supreme Court has moderates but no liberals. Just this week, the court limited the ability of individuals to sue state agencies for discrimination. This court has struck down more federal laws per year than any Supreme Court in the last half century. The Republicans have been equally interested in the lower courts, because the vast majority of rulings never make it to the Supreme Court. Conservative judges in these lower courts, many appointed by President Reagan, are determining the current direction of the judiciary. If President Bush follows the path set by his predecessors, and if Democrats remain passive, the federal judiciary will lurch ever more rightward and may continue to restrict Congress's ability to protect disabled people, women and the elderly from various forms of discrimination. Should anything be done? In an ideal world, both Democrats and Republicans would insist on high-quality judges who would decide cases based on legal grounds that can be accepted by people with diverse views. Rule by left-wing judges is no better than rule by right-wing judges. In the 1970's, Republicans were right to attack undemocratic, overly ambitious rulings of the Warren court. Yet by focusing so carefully on judicial appointments, Republicans have produced an equally undemocratic judiciary — one with far too little respect for the prerogatives of the elected branches. If President Bush seeks judges with political missions, there is only one remedy. As a minimal step, the Senate must be prepared to block any effort by Mr. Bush to fill the courts with people of a particular ideological stripe. Everyone knows the Senate has the power to refuse to consent to a presidential appointment. It also has power to provide "advice" to the president. Indeed, the Constitution's framers intended the Senate's "advice and consent" role to provide "security" against what they greatly feared: an overreaching president willing to dominate the judiciary. During important periods in the past, the Senate has in fact asserted a strong role as adviser. In 1932, for example, Herbert Hoover's choice of Benjamin Cardozo was greatly influenced by senators who insisted on a liberal justice to replace Oliver Wendell Holmes. The current composition of the federal judiciary has been influenced by a sustained, ideological program engineered by members of a single political party. The Senate now has a constitutional right, even a duty, to restrain this effort. Cass R. Sunstein, the author of "Republic.com," is a law professor at the University of Chicago. nytimes.com