Much has been made of the recent 9th Circuit Court of Appeals ruling postponing the October 7 California recall election (Southwest Voter Registration v. Shelley). And rightfully so: the decision was a political power grab by a federal court known for its partisan, liberal activism.
Conservatives have long lamented the Leftist nature of the 9th Circuit and frequently offered evidence of its need for balance, such as its ruling the Pledge of Allegiance unconstitutional (Newdow v. U.S. Congress) and declaring there to be no constitutional "right of the people to keep and bear arms" (Silveira v. Lockyer).
Not only have critics' complaints about the 9th Circuit once again been validated, but also opponents of one of President Clinton's nominees to that bench have also been given the opportunity to say, "See, I told you so." One of the three jurists who decided to postpone the California recall was Judge Richard Paez. When President Clinton nominated Paez to the 9th Circuit, red flags were raised by many conservatives. GOP Senators were quick to point out Paez's liberalism and the likelihood that he would be a judicial activist once he was confirmed to the court, and they led a campaign to defeat his nomination.
Republican lawmakers were not the only voices offering some warnings about Paez's worthiness of a position on the already liberal bench. Some newspaper editorial boards also offered some critiques.
On March 8, 2000, a Washington Times editorial ("Judiciary at the Crossroads") noted:
- Today, the Senate will vote on two of President Clinton's most intensely contested nominees, U.S. District Judge Richard Paez, and labor lawyer Marsha Berzon, both of whom Mr. Clinton has tapped for the overextended and aggressively activist 9th U.S. Circuit Court of Appeals. The vote promises to be close. Republican senators would do well to consider carefully the importance of the crossroads they face, and the direction in which they alone are empowered to steer the federal courts with their votes today. [. . .]
In a perverse way, both Judge Paez and Ms. Berzon would fit right into the Ninth's groove. . . . As for Judge Paez, he is not only a self-described liberal, he is also a self-described judicial activist. He once explained his legal outlook this way: "I appreciate . . . the need of the courts to act when they must, when the issue results from the failure of the political process to resolve a certain political question. There's no choice but for the courts to resolve the question that perhaps ideally and preferably should be resolved through the legislative process."
No choice, indeed. It would seem that Judge Paez believes that simply donning a long, black robe confers upon him the powers of a kind of "superlegislator" with an ever-expanding mandate. Clearly, it is the urgent duty of the Republican Senate to moderate, not intensify, such strains of judicial activism that, more and more, are foiling the will of the legislative branch, and, by extension, the American electorate itself. [. . .]
If a Republican majority in the Senate is unable to take a stand on basic conservative philosophy and defeat two genuinely activist nominees, one must wonder what a Republican majority is for, and how long it can last. [emphasis added]
Roll Call, in a March 12, 1998, editorial ("Slap on the Wrist"), pointed out Paez's ruling in a case that indicated a possible softness on crime that ought to raise questions about his nomination to an appellate court:
- The Senate Judiciary Committee faces an interesting dilemma in considering whether to approve the nomination of federal district court Judge Richard Paez to the 9th Circuit Court of Appeals in California. Republicans have held up the nomination on the grounds that Paez is "too liberal." But what will they do now that Paez has handed down a shockingly light sentence in the case of Republican Rep. Jay Kim (Calif)?
In spite of an abundance of evidence that Kim tried to collect millions of dollars in illegal campaign contributions from foreigners and corporations, Paez sentenced Kim to two months of home detention, one year of probation, and a $5,000 fine after he pleaded guilty to misdemeanors in connection with accepting $250,000 in unlawful contributions. Prosecutors had asked that Kim be given six months' jail time because the violations involve the largest acknowledged receipt of illegal campaign contributions in Congressional history. [. . .]
All the evidence - and the fact that Kim received a lighter sentence than his former campaign treasurer - makes Judge Paez's sentences a mere slap on the wrist and makes us think that the Senate Judiciary Committee ought to question whether Paez isn't too soft on criminals to be an appellate judge. [emphasis added]
The Daily Oklahoman (Oklahoma City) also made a point of noting Paez's liberalism and likely judicial activism ("Problems for Life: Here Come Two More Liberal Judges," March 15, 2000):
- The federal judiciary got decidedly more liberal last week with Senate confirmation of two of President Clinton's nominees to the U.S. 9th Circuit Court of Appeals. [. . .]
Paez, a federal district court judge, used a 1995 speech to attack California's Proposition 187 as anti-Latino and Proposition 209 as anti-civil rights at a time when both voter-approved initiatives were the subject of pending litigation. The speech may have violated the Judicial Code of Ethics, which bans judges from making statements that cast doubt on their impartiality.
In addition, Paez has said he believes the courts must act on issues when "that perhaps ideally and preferably should be resolved through the legislative process." In other words, Judge Paez won't be shy about legislating from the bench. [emphasis added]
Even the Washington Post, which supported the Paez nomination, conceded that conservatives had a point ("Judge Paez Nomination," October 29, 1999):
- Judge Paez should, in our judgment, be confirmed, but the Republican opposition to him is not entirely frivolous.
Back in 1995, Judge Paez made a speech before a group of students at his old law school that dealt with the diversity of the bench in California. In this speech, he made the following remarks: "The Latino community has, for some time now, faced heightened discrimination and hostility, which came to a head with the passage of Proposition 187. The proposed anti-civil rights initiative will inflame the issues all over again, without contributing to any serious discussion of our differences and similarities or ways to ensure equal opportunity for all."
For a sitting judge to disparage ballot initiatives that were likely subjects of litigation was inappropriate. Moreover, the initiative that Judge Paez termed "anti-civil rights" - which later became Proposition 209 and, after passing, ended affirmative action in California state programs - is a hot-button issue for many Republicans. A federal court, in a move that for some Republicans has become a kind of emblem of liberal activism, initially held Proposition 209 unconstitutional and prevented it from taking effect. A principled conservative could suspect, based on Judge Paez's comments, that he might be sympathetic to such thinking and would be more generally a liberal activist on the bench. [emphasis added]
If there is a silver lining to the recall ruling by the 9th Circuit (other than the entertainment value it provides for non-Californians), perhaps it will serve to further remind people that it is important to have a President who will nominate judges who understand the true principles of the Constitution, including the separation of powers, and refuse to legislate from the bench.
