A Conservative Juggernaut: Judicial attacks push debate to right, put Hatch in middleAuthor(s): TERRY CARTERSource: ABA Journal, Vol. 83, No. 6 (JUNE 1997), pp. 32-35Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27839593 .

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Ummmm NEWS

A Conservative Juggernaut Judicial attacks push debate to right, put Hatch in middle

BY TERRY CARTER

The abruptness was telling

when Sen. Orrin Hatch an nounced in February that he would end the ABA's official role of advising the Senate on

judicial nominations. Many times in the past he had lav ished praise on the work for its thoroughness and quality, though noting that he did not

always agree with the conclu sions.

By last May, when he con vened his Senate Judiciary Committee to probe the ABA and its long-standing role in evaluating the fitness of nomi nees to the federal bench, his tone had begun to change.

But while he sharply crit icized the association for hav

ing policies on controversial is sues, the hearing appeared to be no more than a tip of the hat to the conservative, and in

creasingly influential, Federal ist Society.

That organization, which lists Hatch as a trustee, has

since the Senate rebuffed Robert H. Bork's bid for the Supreme Court in 1987. After the committee hearing,

Hatch's stern rebuke faded into the Congressional Record?until this past February, when the ABA House of Delegates passed a resolu tion calling for a moratorium on the death penalty until due process and proper representation are ensured.

The call was not for an end to

capital punishment, but ABA crit ics cast it that way as they ham

mered the theme through a net work of conservative groups. Three weeks later Hatch, a Utah Republi can, used his authority as Judiciary Committee chairman to end the ABA's formal role of advising the Senate. Individually, senators will still receive ABA reports.

For now his gesture is little more than symbolic. He short-cir cuited the ABA's influence only with the Senate's system of public hearings, while the greatest impact of the association's Standing Com

J??lR?ii??fi9HH

SEN. ORRIN HATCH: Used his authority as Judiciary Committee chairman to end the ABA's formal role of advising the Senate and has vowed to go after "activist judges" who legislate.

mittee on the Federal Judiciary is in screening for the executive branch. There, the ABA committee occasionally turns up in formation so troublesome that the White House quietly pulls a nomina tion before it goes public. But Hatch's anti-ABA move strikes many as

something new. It comes at a time of unprecedent ed judge bashing, mostly from the same critics.

Washington has buzzed with talk of rein ing in the federal judic iary. Proposals include ending life tenure; cut ting back the number of judges, particularly on

appeals courts; and im

peaching so-called "ac tivists" for decisions in

particular cases.

The unleashed forces sometimes have gotten

away from the controlling hand of the Senate Judiciary Committee chairman, and chipped at his pow

Seeking Approval During his first term, President Clinton won confirmation for more judicial appointees than did his two Republican predecessors. Still, some critics complain of a recent slow down in confirmations.

Judges confirmed during the first term for presidents: REAGAN BUSH CLINTON 164 194 202 Number of vacancies as of April 1:97

Number of "Judicial emergencies" in which seats have been open more than 18 months: 23

Federal appeals court with the most vacancies: 9th Circuit (eight vacancies)

Sources: Sen. Charles Grassley, R-lowa, (first-term appointments) j and the Alliance for Justice (current vacancies)._

32 ABA JOURNAL / JUNE 1997 AP PHOTO/KARIN COOPER

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er. Some Republican colleagues even tried to create a procedure to give Republican senators a veto over appellate nominees in their home judicial circuits.

During a floor vote in March on one appellate judgeship, Hatch became livid when some Republi cans tried to block him from push ing through a relatively conserva tive Clinton appointee. He fumed at what he called a "mini-rebellion," browbeating his colleagues into ap proving the judge. But he also promised them he would go after "activist judges" who "attempt to legislate."

More immediately, he has slowed Judiciary Committee votes on nominations to the point that Sen. Patrick Leahy, D-Vt., com plained that sending names to Hatch's committee has become "like tossing them down into a black hole in space. Nothing comes out."

What appears to be pushing Hatch and others on the Hill to new levels of stridency is a finely fo cused, carefully orchestrated and fast-growing conservative counter to liberal groups traditionally in volved in the confirmation process. These groups were just beginning to flex their muscles at the White House during the Reagan and Bush administrations.

Now along with the Federalist Society, the Free Congress Founda tion's Judicial Monitoring Project, and the Project on the Judiciary, sev eral dozen other groups are bear ing down on the Senate.

"And now it's framed more than ever in terms of ideological ac ceptability, even though they use the term 'activism,'

" says Sheldon

Goldman, a political science profes sor at the University of Massachu setts. Goldman conducts a biennial review of the judicial confirmation process for Judicature, the maga zine of the American Judicature So ciety, a nonpartisan research group.

The new players are using newsletters, mass mailings, media blitzes and the World Wide Web to pressure senators. Visitors clicking links on the conservative "Town

Hall" Web site find cross-pollination among scores of groups, publica tions and thinkers, from Rush Lim baugh to the Heritage Foundation. The welcoming home page beckons them to "explore the new conserva tive world."

Says Leonard A. Leo, the Fed eralist Society's legal studies direc

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^ H NEWS

tor, "We borrowed it straight from the Left's playbook." The Federalist Society began 15 years ago as a Lib ertarian movement in law schools. After becoming lawyers, members wanted to "keep having fun," Leo says, so the organization now has lawyer chapters that account for about 16,000 of its 20,000 mem bers. The conservative co

alitions they feed with pub lications, seminars and debates play hardball? with scorecards.

The so-called "Hatch Pledge" is a glaring exam

ple. The Judicial Selection Monitoring Project, a spin off of the Free Congress Foundation, seized a single sentence in a speech Hatch gave this past November to a Federalist Society group and turned it into the "Hatch Pledge" for senators to abide by on judicial con firmations:

"Those nominees who are or will be judicial ac tivists should not be nomi nated by the president or confirmed by the Senate, and I personally will do my best to see that they are not."

In February, Thomas L. Jipping, the monitoring project's director, asked every sena tor to sign the promise. The group's

Web site lists the names of the six who did and the 94 who didn't. Hatch, ironically, did not sign on. He wrote Jipping to explain his pol icy is to decline all such requests, but he added that "as always I am both impressed with and grateful for your great efforts to mobilize public opinion to recognize the tre mendous threat judicial activism poses."

The notion of a "no activist" pledge shows how much the playing field has been realigned with a Democratic president and a Repub lican Congress far to his right.

Critics like Jipping complain that Clinton's judges are liberal ac tivists, while the liberal Alliance for Justice has tagged them as con servatives. A detached observer such as political scientist Goldman says Clinton's appointees have been almost uniformly moderate to con servative.

The fact that Hatch finds him self in the middle of the ideological

name-calling also shows how far the curve has been pushed to the right. Privately he tells colleagues that his move against the ABA and his calls for accountability in the ju diciary prevent worse things from

Edward Madeira: "Some attacks are based on inaccuracies/7

happening. Publicly he stays on the attack. On the heels of Hatch's statements, House Republican whip Tom DeLay of Texas threatened to start impeachment proceedings

against "activist judges." While the Federalist Society's

Leo dismisses DeLay's threat as a red herring, he is enjoying the po litical heat it creates. "We're trying to spark debate, too, and we're not trying to undermine the ABA or the judiciary. We're in the battle be cause we don't think the debate is

sharp enough." The Federalist Society sharp

ened its attacks last August when it began publishing an occasional newsletter titled ABA Watch, which criticizes the ABA, including its role in judicial selection.

"But the real attack dog in the movement is Tom Jipping," says an official in the Administrative Office of the U.S. Courts, referring to the Judicial Selection Monitoring Proj ect's criticisms of individual iudges'

decisions. "And the judges can't fight back, nor can the ABA to the extent its work [evaluating nominees] re

mains confidential.'' Many believe the ABA

draws criticism because its high-profile evaluations

make the easiest target to pelt with sour grapes. While the association's committee operates in secret, its evalu ations become public during Senate Judiciary Committee hearings. Many nominations over the years have moved through the Senate with a wink and a voice vote. Then any later criticism was di rected at the ABA.

Always simmering be low the surface in attacks against the ABA is the failed nomination of Bork to the Supreme Court. Though the ABA evaluated him as "well qualified," angry conserva tives seized on a reported

minority vote in the review committee finding him "not qualified."

But it was a majority of the Senate that rebuffed Bork, not the ABA.

"They're attacking the messen ger, and the problem is that the ABA's vote never should be viewed

as a veto," says Thomas M. Sus man, who was general counsel for the Senate Judiciary Committee in the late 1970s, when the nomina tion process was overhauled and

made more public. He now is on the ABA Board of Governors. "I just hope all this flack doesn't make the ABA more cautious in its review."

An ABA investigation of feder al judicial nominees is conducted by lawyers who live and practice in the same circuits or districts as the nominees. Unlike FBI and Judicia ry Committee staff background checks, these are confidential and

The playing field has been realigned with a Democratic president and a Republican Congress far to his right.

34 ABA JOURNAL/JUNE 1997 ABAJ/ROB CRANDALL

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not subject to disclosure under the Freedom of Information Act.

"There is a level of candor not

given the FBI or Judiciary Commit tee," says Ralph Lancaster, a for

mer chair of the ABA committee. He resigned from the ABA in 1992 in disagreement with its policy on abortion rights. But Lancaster says he still believes no other group can

bring such valuable information to the judicial selection process.

"I would be very surprised if it were operating any differently from before," he says. 'The pendulum will

swing again. It depends on which side's oxen are being gored."

Policy Debate The ABA's critics argue that

the association's House of Dele

gates cannot take policy positions, lobby Congress on them and also have a formal role in judicial selec tion. ABA President N. Lee Cooper has debated them on radio, televi sion and in print to say the associa tion can.

"We have no political action committee, and that separates us from virtually all national associa tions," Cooper says. "We don't make

campaign contributions. We don't rate members of Congress based on their positions on ABA legislative priorities. We don't look like or walk like a political organization."

The swirling and sometimes vicious debate over nominations and judges is exactly what was

predicted 200 years ago by James Madison and Alexander Hamilton in the Federalist Papers, says Ed

ward N. Madeira, chair of the ABA's Commission on Separation of Pow ers and Judicial Independence. Cooper created the commission last year in response to the spate of judge bashing.

"That debate of long ago cur

rently has the context of judicial ac

tivism," Madeira says. "The com mission wants to ensure the debate uses accurate-basis facts. We don't want to get into politics, we just want this done honestly. And some attacks are based on inaccuracies, which are easier to whip up."

As judge bashing and ABA

bashing fuel Washington's increas

ingly contentious politics, Madeira's observation may prove to be cau

tionary. Despite donkeys and ele

phants on lapel pins, the federal

city really is about two huge herds of oxen. And they take turns being gored.

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