One More on the 9th: GOP Senators Warn About Paez

In last Friday’s First Look I quoted a few newspaper editorials negatively critiquing the nomination of Richard Paez to the 9th Circuit — one of the three judges who issued the recent decision to delay the recall. I also stated that GOP Senators pointed out Paez’s liberalism and likelihood that he would be an activist once he was confirmed to the 9th Circuit. In order to remind Americans that GOPer’s have every right to say, “You were warned,” here are some of the statements made by Republican Senators during the debate on the nomination of Richard Paez.


Former Sen. Bob Smith (N.H.), Congressional Record, March 9, 2000:

    The ACLU of Southern California applauded [Paez’s] nomination as “a welcome change after all the pro-law enforcement people we’ve seen appointed to the state and federal courts.” Think about that statement by the ACLU. No matter what you think about the ACLU, let me repeat that statement. They stated, this nomination is “a welcome change after all the pro-law enforcement people we’ve seen appointed to the state and federal courts.” What does that tell you about this guy? I am telling you, my colleagues, I really wish we would stop and think about what we are doing.

    I say to the American people and my colleagues, when you hear stories about people getting out of jail or not going to jail or committing crimes over and over and over again–and you ask yourself: Oh, those liberal judges, what are we going to do about them?–ask your Senators what they did about liberal judges when they came before the Senate, before we put them on the court. That is a legitimate question: Do you support people who are lauded because they are anti-law enforcement? Maybe you ought to ask them that question because that is exactly what is happening.


Sen. Jeff Sessions (Ala.), Congressional Record, March 9, 2000:

    He has stated, as a State judge, a philosophy of judging that is the absolute epitome of judicial activism. He said that when a legislative body doesn’t act, it is the responsibility of the judge, or the judiciary, to act and fill the void. Well, when a legislative body, duly elected by the people of the United States, fails to act, that body has made a decision–a decision not to act. But they are elected. If they do the wrong thing, they can be removed from office. But now we want to have a Federal judge who is unelected, with a lifetime appointment, to blithely walk in and say: Well, I don’t like this impasse. You guys have a problem and you didn’t solve it, so I am going to reinterpret the meaning of the Constitution. That word doesn’t mean that, or “is” means something else. So I am going to make this legislation say what I want it to say. I am going to solve this problem. You guys in the legislative branch would not solve it; you failed to solve it, and you are thinking about special interests. But I am above that, and I will do the right thing.

    Mr. President, that is judicial activism. That is an antidemocratic act at its most fundamental point because that judge has a lifetime appointment.


Former Sen. Strom Thurmond (S.C.), Congressional Record, March 9, 2000:

    Judge Paez is a self-described liberal. He has made inappropriate comments regarding ballot initiatives that were pending in California at the time he discussed them. I also have questions regarding his sentencing of John Huang. Further, he has made various questionable rulings that call into question whether he understands the limited role of a judge in our system of government. For example, he ruled that a Los Angeles ordinance that prohibited aggressive panhandling was unconstitutional. He prevented the enforcement of a reasonable ordinance enacted by the legislative branch because he said it violated free speech rights. The California Supreme Court later ruled contrary to Judge Paez after the question was submitted to them. This shows a lack of deference to the legislative branch. Also, he made a questionable ruling holding an American corporation liable for human rights violations committed by a foreign government, which prompted the U.S. Chamber of Commerce to oppose his nomination.

Sen. Jon Kyl (Ariz.), Congressional Record, March 9, 2000:

    ???Judge Paez is apt to be an activist rather than a neutral arbiter.

Sen. Larry Craig (Idaho), Congressional Record, March 9, 2000:

    I have reviewed the background materials on Judge Paez, and I cannot ignore the nominee’s penchant for imposing his own political vision on the case before him.

    Judge Paez has shown, on more than one occasion, his activist judicial philosophy. He was quoted in the Los Angeles Daily Journal as saying: “I appreciate the need of the courts to act when they must, when the issue has been generated as a result of the failure of the political process to resolve a certain political question……..There is no choice but for the courts to resolve the question that perhaps ideally and preferably should be resolved through the legislative process.”

    That is as clear a statement of judicial activism as I have ever heard. [???]

    [M]y constituents and other citizens in the ninth circuit would hardly be well served by adding yet another liberal judicial activist to the current mix. Whether or not Congress ultimately addresses the circuit’s problems by agreeing to the split I am advocating, this Senate should not exacerbate the problems with this ill-advised nomination.

    I know the administration must take the best case possible for its nominees, but they cannot expect this Senator to ignore “the other part of the story.” Judge Paez’ record reflects an eagerness to use his authority to accomplish social change and a disrespect for principles of judicial decision making.


Sen. Trent Lott (Miss.), Congressional Record, March 9, 2000:

    [Paez] believes the courts should be willing to do what is our job, not theirs. That is a fundamental problem.

    When he was being nominated to the Federal district bench, no less an arbiter of liberalism than the American Civil Liberties Union considered him a “welcome change after all the pro-law enforcement people we have seen appointed.”

    I think the American people want pro-law enforcement people appointed to the bench regardless of their background or any other consideration. [???]

    Judicial activism is a fundamental challenge to our system of government, and it represents a danger that requires constant vigilance. In our tradition and under our laws, we give power not to a specific group of trained experts, but rest our faith in the ability of all Americans, whatever their backgrounds, to participate in their government. Judicial activism robs the people of their role, and undermines the basis of our democracy.

    Nowhere is this problem of judicial activism greater than in the Ninth Circuit. And nowhere is it more incumbent upon us as Senators to take seriously our responsibility to restore a proper respect for our system of representative government.


Former Sen. Frank Murkowski (Alaska), Congressional Record, March 9, 2000:

    Justice Paez, in his own words, stated that he “appreciate[s] ….. the need of the courts to act when they must, when the issue has been generated as a result of the failure of the political process to resolve a certain political question…….”

    He then continues:

    There’s no choice but for the courts to resolve the question that perhaps ideally and preferably should be resolved through the legislative process.

    I think that statement deserves a great deal of thought and consideration because he is implying that if we don’t take care of it through the political process, this judge is going to simply take action into his own hands. I am not ready for that. That, to me, is a flag.

    One does not have to be a legal scholar to see that this is a blatant infringement upon the Constitution, the Constitution we rely upon to protect ourselves from improper Government actions. Article I, as I know the Chair is familiar, clearly states that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States.” Should this body abdicate its role and confirm nominees who openly defy the Constitution? I hope we will all answer with a resounding “no.”

    Unfortunately, Judge Paez’s background goes far beyond activist judicial decisions. [???]

    Time and time again, Judge Paez has demonstrated a lack of proper judicial temperament.