As Republicans try to block some of President Barack Obama's nominees for the federal judiciary, they're focusing on a familiar target: the American Civil Liberties Union.
They've delayed indefinitely Judge David Hamilton's proposed elevation to the U.S. Court of Appeals for the 7th Circuit in part because of his work for the ACLU in the 1980s. And today, in voting on four district court nominees, they raised objections to one nominee who served as an ACLU staff lawyer for 16 years and another who was once a member of the group.
“I think we’re seeing a common DNA run through the Obama nominees, and that’s the ACLU chromosome,” said Sen. Jeff Sessions (R-Ala.) during a meeting of the Senate Judiciary Committee.
Sessions, the committee’s top Republican, criticized the organization’s stands on the death penalty and separation of church and state. He called its argument that capital punishment is unconstitutional an “outrageous position” that’s unworthy of serious consideration.
Democrats came to the ACLU’s defense. Sen. Patrick Leahy (D-Vt.), the committee’s chairman, suggested that involvement with the ACLU was more defensible than involvement with the conservative Federalist Society. Sen. Dianne Feinstein (D-Calif.) said that the former ACLU staff lawyer in question, Edward Chen, has proved his judicial bona fides as a magistrate judge for eight years.
“He has made the transition from advocate to judge, and I do not believe there is a spot, a blemish, a wart on his record as a magistrate judge,” Feinstein said.
The Judiciary Committee sent Chen’s nomination to the full Senate on a party-line vote of 12-7. On voice votes, it forwarded three other nominees for California district court seats. Sessions singled out one of those, Dolly Gee, as a member of the ACLU in the 1990s, while focusing most of his criticism on Chen. Click here for our coverage of the four nominees’ confirmation hearing.
Work for the ACLU was a hurdle for several of President Bill Clinton’s nominees. U.S. District Judge Susan Oki Mollway of Hawaii waited two years for confirmation because she had been director of a local chapter of the ACLU that supported same-sex marriages. A Clinton nominee for U.S. district court in New Jersey, David Harris, withdrew after Republican criticism that he had been a trustee of a local ACLU chapter.
Andrew Friedman writes, "'judicial activism' and 'strict construction' are simply code words for the very same thing - - making law in accordance with the judge's political views under the guise of interpreting the constitution, a statute or existing case law."
"Strict construction" is a term we don't hear much any more. Andrew's statement is quite obviously not true of original understanding jurisprudence, as the opinions of originalist Justices Scalia and Thomas in a whole series of cases favoring criminal defendants demonstrate.
As for the notion that it is up to the legislature to fix bad interpretation, that is often done with statutes but is far more difficult with the Constitution. Amending the U.S. Constitution is enormously difficult, for good reason. We should not have to amend it just keep it meaning what it has always meant.
Posted by: Kent Scheidegger | October 15, 2009 at 09:57 PM
Long live the Bill of Rights and ACLU! Up Flag!! Salute!!!
Posted by: Ken Loveless | October 15, 2009 at 06:27 PM
"judicial activism" and "strict construction" are simply code words for the very same thing - - making law in accordance with the judge's political views under the guise of interpreting the constitution, a statute or existing case law. If a conservative or liberal judge steps over that line in a way that the public does not accept or want, then it is up to the legislature to fix it by enacting laws that trump the judge's interpretations (or by making their intent clearer in the first place).
Posted by: Andrew Friedman | October 15, 2009 at 05:46 PM
"Given that judicial activism in the true sense of that term is the heart and soul of the ACLU, scrutiny is entirely appropriate."
That makes as much sense as saying that any member of the Republican Party should be given extra scrutiny.
Because clearly, they are anti-American, they believe the less government the better - and we all know the "slippery slope" that leads to - no government and thus anarchy, they believe in interpreting the Constitution as not 3 co-equal branches, but an Unitary (Imperial) Executive, with Congress and the Judiciary rubber-stamping everything that Executive says.
The Judiciary, in its co-equal role, sometimes has to put the brakes on the other 2 branches and yes, sometimes in doing so it must rely on rights in the Constitution that do what --gasp-- empower "the people" against the government (which Kent thinks is probably the same as "depriving [them of their rights of self government]".
As usual, an Activist Judge is one who rules in a way the observer doesn't like, i.e. in the ACLU's case by tending to side with Individuals or The People against Governmental action.
Posted by: Jon | October 15, 2009 at 05:41 PM
Given that judicial activism in the true sense of that term is the heart and soul of the ACLU, scrutiny is entirely appropriate. If a person has spent a large portion of his career in ACLU work, he probably does believe that "interpreting" the Constitution to mean things the people never intended -- thereby depriving the people of a portion of their constitutional right of self-government -- is the proper role of the judiciary.
Anyone who believes that should not be confirmed for a lifetime appointment to the federal judiciary. To this day, the people of the Far West suffer from Jimmy Carter's appointments to the Ninth Circuit. We should remember those past mistakes and not repeat them.
That is not to say that past association with the ACLU is disqualifying. It is, however, an indicator of a strong likelihood of something that should be disqualifying, and that possibility needs to be carefully checked out.
Posted by: Kent Scheidegger | October 15, 2009 at 04:59 PM