Judicial Selection Monitoring Project Coalition for Judicial Restraint Weekly Update for 4/18/01 Volume IV, Number 8 Published by the Center for Law & Democracy at the Free Congress Foundation. Thomas L. Jipping, M.A., J.D., Director John A. Nowacki, Esq., Deputy Director Jason Koehne, Coalition Coordinator (e-mail: [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> ) Phone: 202-546-3000 Fax: 202-543-5605 http://www.freecongress.org/ <http://www.freecongress.org/> ************************************************** IN THIS ISSUE: * Commentary: Edwards Seeking Legislation From The Bench. * James Wynn's Activist Dissenting & Concurring Opinions. * Commentary: The Real Story On Held Up Nominations. ************************************************** Commentary: Edwards Seeking Legislation From The Bench By John Nowacki "We should be nominating judges. Whether it is a Democratic or a Republican administration, it shouldn't make any difference in nominating well-qualified judges. This body should act on the qualification of those men and women to serve on the court, not based upon the Republican or Democratic composition of the court. It is just that simple. This should be totally nonpartisan." So said Senator John Edwards (D-NC) in October of last year, when there were 34 fewer vacancies in the federal courts than there are today. And, assuming that he meant to say "confirming" instead of "nominating," he was absolutely right. When the President--any President--nominates someone for a federal judgeship, that nominee's party affiliation should not be a consideration. Presidents and the Senators who must confirm the nominees should look to whether the candidate for a judgeship is fair, impartial, and of the right temperament. They should also make certain that those confirmed to the federal bench are dedicated to upholding the law, and not to legislating their partisan political agenda from the bench. A qualified judge--the kind Senator Edwards was talking about--is one who takes his oath of office seriously and understands that judges are to apply and interpret the law, leaving the re-writing of law to the legislature. Unfortunately, Edwards seems to have forgotten everything he said about the need for non-partisan confirmations in the months since Election Day. When President Bush announced 11 nominations to the U.S. Courts of Appeals last week, Edwards announced that he would hold up Terrence Boyle, the nominee from North Carolina, unless the President nominated the Senator's choice for a circuit judgeship. Why? Pure partisanship. "Until we find some constructive process that allows for balance, then I would not support any nominee, including Judge Boyle," Edwards said. According to the Associated Press, Edwards suggested his cooperation could be gained by the re-nomination of state judge James Wynn--a Clinton nominee whom Edwards apparently believes would "balance" Judge Boyle's elevation to the Court of Appeals. President Bush has been very clear about his standard for judicial selection. When he presented his nominees on May 9, Bush said: "Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. To paraphrase . . . James Madison, the courts exist to exercise not the will of men, but the judgment of law. My judicial nominees will know the difference." So . . . Bush says that his nominees will be men and women who will exercise restraint and respect the constitutional separation of powers. What is it that needs balancing here? The partisan interests that Edwards condemned on the Senate floor just seven months ago? Of course, that's precisely what Edwards is worried about. He wants judges who have the Democrats' stamp of approval and who are perfectly willing to legislate from the bench. Just take a look at the man whom he would nominate if he were President (and whom he's trying to nominate, even though he's not). As a judge on the North Carolina Court of Appeals, James Wynn wrote that the state supreme court should revoke a municipality's sovereign immunity from tort liability, even though that would be a clear usurpation of the legislature's role. During a brief stint on the North Carolina Supreme Court, Wynn held that when determining the duty of care a homeowner owes to licensees and invitees on his property, the common law distinction between the two was abolished and replaced with a single standard. The Chief Justice of that very court -- who concurred in the result of the case only--wrote that it was "unadvisable to render an opinion of that magnitude" when no party had suggested the modification and the court did not have the benefit of arguments and briefs on the issues decided by the majority. According to the Greensboro News & Record, Wynn's position actually "scrapped more than a century of existing law." Wynn's nomination went nowhere in the last Congress because of his clear record as a judicial activist--not because he was a Clinton nominee (the Republican Senate confirmed nearly two-thirds of Clinton's judicial nominees, allowing him to nearly match Ronald Reagan's record for judicial appointments). That record of judicial activism--ruling according to what he thought the law should be, rather than what it actually is--is what prevented his confirmation and what should prevent his re-nomination today. As Senators proceed to give their advice and consent, they should remember that we need judges who meet the standard Bush set forth. If Senator Edwards can demonstrate that Boyle is someone who does and will legislate from the bench, then he is right to block that nomination. But if he can't, then he is engaging in the same behavior that he condemned in that speech last year. According to Senator Edwards, ideological litmus tests for judges were wrong last October. Edwards should recall his own words and recognize that if he wants to remain credible at all, they should still be wrong today. ************************************************** James Wynn's Activist Dissenting & Concurring Opinions According to the Washington Post, White House Counsel Alberto Gonzales has agreed to interview North Carolina Judge James Wynn for either a seat on the U.S. Court of Appeals for the Fourth Circuit or a U.S. District Court in North Carolina. As mentioned above, Wynn was a Clinton nominee with a clear record of judicial activism. Clinton re-nominated him in January, and President Bush withdrew the nomination in March. The Administration had little to say about the fact that Gonzales will meet with Wynn. "We're continuing to consult closely with Senator Edwards and work with him in a bipartisan manner," said spokesman Scott McClellan. A few additional examples of Wynn's judicial activism, from his dissenting and concurring opinions: * In a 1991 case, Wynn voted to overturn a drug trafficking conviction. Contrary to the jury's finding, he said that evidence the defendant was present at the crime scene and in close proximity to the drugs did not directly link him to the contraband. * In a 1992 case, Wynn voted to allow a prison inmate to continue receiving disability payments despite a law stating that the worker's compensation statute "shall not apply to prisoners." Wynn insisted that "the fact of his incarceration should not deprive him" of those benefits. * In a 1993 case, Wynn voted to overturn the involuntary manslaughter conviction of a man whose dogs escaped from his house and killed a jogger. Though the city ordinance involved was clear, Wynn wanted to create a new requirement that the government prove the defendant's knowledge of the dogs' vicious propensities. * In a 1997 case, Wynn voted to overturn the armed robbery conviction of defendants who used their firearm in the getaway rather than a little earlier. * In a 1997 case, Wynn voted for damages to a plaintiff for an injury occurring outside an insurance policy's coverage area. * In a 1998 case, Wynn voted to allow a convicted sex offender to remain on parole despite being in the presence of a child under the age of 16, prohibited by the terms of his parole. Wynn argued that failing to leave the presence of a child who approached the man was different than the man approaching the child. The former, Wynn argued, was not "willful" and therefore not a parole violation. * In a 1998 case, Wynn voted to exclude from trial more than 50 pounds of marijuana evidence found during a vehicle search. He argued that the defendant producing the title to his vehicle effectively dispelled any suspicions raised by his inability to produce registration or to provide consistent information regarding ownership of the vehicle. * In a 1999 dissent, Wynn voted to overturn the felony murder conviction of man who killed two college students while driving drunk. Under state law, a felony murder conviction could result from a felony committed with a dangerous weapon. State courts had repeatedly held that a vehicle could be used as a deadly weapon. In class activist fashion, Wynn wrote that if the court were to "solely" address the legal issue, he would be "more inclined" to uphold the conviction. But, he wrote, the court "cannot remain blind to the legal and societal ramifications" and thus voted to overturn the conviction despite what the law required. * In a 1999 case, Wynn voted to impose negligence liability on a city in dispatching fire-fighting personnel to the plaintiff's home. He argued that a telephone conversation between the plaintiff and the dispatcher created a "special duty" sufficient to overcome the traditional shield protecting a municipality from liability for providing such services. ************************************************** Commentary: The Real Story On Held Up Nominations By Thomas L. Jipping Senate Democrats get high marks for creativity -- if not for consistency -- in the way they are approaching the confirmation of President Bush's judicial nominees. The first 11 of those nominees reached the Senate last week and Democrats are flip-flopping all over the deck, abandoning eight years of unified insistence that confirmations should be swift and non-partisan, that the president's nominees deserved fair treatment and up-or-down votes, and that filling judicial vacancies is necessary to prevent collapse of the judicial system. That was then, this is now. Let's look at their latest gimmick created to justify what will be ongoing aggressive Democrat obstruction of Bush nominees. As the Wall Street Journal reported it, Senator Patrick Leahy (D-Vt.) recently claimed Republicans had "held up 167 judicial nominations by the end of the Clinton administration." He seemed to be saying not only that this claim is accurate but also that supposed Republican obstruction then justifies Democrat obstruction today. Neither of these is true and a little examination reveals just how crafty the Democrat obstruction strategy really is. First, it's not at clear what "held up" even means. If it simply means delayed or slowed down, of course, it means nothing and is absolutely useless. There exists no objective standard for how long a nomination is supposed to take traveling through the various stages of the confirmation process. And, besides, when Democrats ran the Senate, they confirmed an average of 65 nominees of Democrat presidents but only 47 nominees of Republican presidents per year. So if "held up" simply means slowed down, Democrats should look in the mirror. Second, by "held up" the Democrats could mean "blocked" or prevented altogether. On the one hand, this is the only version that would really make a decent argument. On the other hand, it simply isn't true. This figure appears to include nominations made by President Clinton but never confirmed by the last three Republican Senates. These nominations, the argument goes, were left pending on the agenda when the Senate adjourned and simply expired. Yet, according to a February 1999 report by the Congressional Research Service (CRS), the Senate confirmed 173 of the 230 judicial nominations it received during the 104th and 105th Congresses (1995-1998). Other records show that the Senate confirmed 72 of the 117 nominations it received during the 106th Congress (1999-2000). Even lawyers elected to the Senate should be able to handle this math: Only 102 nominees -- far less than the 167 being claimed by Democrats today -- were unconfirmed by the Republican-led Senate. By the way, this interesting CRS report also outlines past Democrat obstruction efforts against Republican nominees. While the Democrat Senate confirmed 92 percent of judicial nominees by Democrat President Jimmy Carter during 1977-1980, they confirmed just 80 percent of judicial nominees by Republican Presidents Ronald Reagan and George Bush during 1987-1992. This claim of 167 blocked nominees is also falsely inflated by double- and triple-counting the same nominations made in successive Congresses. President Clinton caught some flak from his leftist supporters for not openly fighting confirmation battles over individual nominees. His very successful strategy, however, was to send nominees the Republican Senate did not want to confirm, back to them over and over until Republicans gave in. The current Democrat gimmick, however, would count these nominees -- some multiple times -- as "blocked," when not confirmed in one Congress, even though those same nominees were confirmed in the next one. At least a dozen nominees in the 106th Congress, for example, had also been nominated in the 105th Congress and seven of them were confirmed. Thus, the Democrats' ultimate deception -- claiming as nominations "blocked" by Republicans many individuals who are, in fact, today serving on the federal bench! Finally, this fake claim is further inflated by including as "held up" nominations made so close to adjournment that they could not reasonably have been confirmed at all. For better or for worse, the confirmation process now takes months to complete, even for ordinary, non-controversial nominees. For this reason, in its September 1997 study of nominations expiring without ever receiving hearings, the Congressional Research Service excluded nominations made within four months of adjournment. By the way, that CRS report showed that Democrats blocked (a.k.a. "held up") 44 Republicans nominees when they ran the Senate during 1987-1992 (7.3 per year) while Republicans blocked 17 Democrat nominees when they ran the Senate during 1995-1998 (4.3 per year). Again, Democrats should look at the mirror. The 106th Congress adjourned on December 15, 2000, later than in all but one presidential election year since the 1960s. Using the CRS objective standard excludes seven nominees from last year's total alone. And if Congress had adjourned in mid October -- the average in a presidential election year -- more than a dozen nominees would drop out. This review is necessary to show the American people the contortions, distortions, and deceptions currently being employed by those seeking to obstruct President Bush's judicial appointments. Democrats claim that Republicans blocked 167 Clinton nominees. The true number is less than half that. But even if it were an accurate charge, that would still leave Democrats in the hypocritical position of preventing confirmations they once argued were necessary for the administration of justice. This column originally appeared on WorldNetDaily at http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=22860 <http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=22860> , where Tom Jipping's columns are published on Thursdays. **************************************************
