The recent decision by Judge Anna Diggs Taylor—declaring unlawful President Bush’s terrorist surveillance program—epitomizes the continued threat activist judges pose to the stability and, in this case, security of our society. Legal commentators from both sides have characterized her opinion as “patently deficient” and sure to be overturned on appeal. Even the Washington Post describes her decision as “neither careful nor scholarly.” Taylor’s “angry rhetoric” demonstrates how an activist judge abandons legal reasoning and self restraint in pursuit of a political agenda.
Judge Taylor was appointed, at age 47, as a federal judge to the Eastern District Court of Michigan, by President Carter in 1979. Now, 27 years later, some observers speculate that Taylor may soon relinquish her seat. This raises an important question: Should Taylor resign from her position, would the current Senate move quickly to confirm a well-qualified nominee, characterized by judicial self-restraint, replacing her track-record of activism? I have my doubts.
It’s not well known that the 109th Congress has the worst judicial confirmation record in 30 years. They have confirmed only 51 nominees during 20 months of legislative business. No Senate has completed less work on confirming judges since the days of Watergate. While conservatives remain grateful for the appointment of two exceptional Supreme Court justices, we are reminded that even President Clinton enjoyed the confirmation of 127 judicial nominees alongside two Supreme Court justices during the 103rd Congress.
All signs from Senate Majority Leader Bill Frist (R.-Tenn.) indicate he is quite content with the current pace of the confirmation process, and does not intend to push the issue further before the November mid-term elections. This decision deprives many from within his own party, including embattled Sen. Rick Santorum (R.-Pa.), of a key issue that helped Senate Republicans in 2002 and 2004.
Want more evidence? Just ask South Dakota citizen Tom Daschle, as early retirement provides him with time to take your call.
During the campaigns of 2002 and 2004, Republicans increased their Senate margins by rightfully representing Democrats as the party of "obstructionism." Tom Daschle led the Democrats’ obstructionist tactics and, as a result, became the first Senate party leader to lose his seat in more than 50 years. Today, some Republicans have joined the “obstructionists” by demanding prior approval of judicial nominees before a nominee advances toward confirmation. Their association with the “Gang of 14” (a bipartisan group of senators who blocked the constitutional option) presents an additional challenge to Republican members fighting for re-election.
At the center of this gang is Sen. Lindsey Graham (R.-S.C.). He rode the coattails of judicial obstruction all the way to Washington in 2002, fully aware of the potency of the judge’s issue. Recent reports suggest that placing roadblocks to the confirmation of 4th Circuit nominee William Haynes is South Carolina’s very own, Mr. Graham. And to think, we were all so deeply moved when Graham rushed to defend Judge Samuel Alito from the abusive tactics of Senate Democrats. Who would have thought that within mere months, we would be forced to confront Graham’s own similar tactics?
Sen. Graham may be emboldened in his present actions because of the malaise of his party’s leader. Majority Leader Frist is responsible for providing a timely debate and an eventual vote on the nominee’s confirmation. The Senate’s constitutional duty is not fulfilled until a vote has occurred. Regrettably, Terrence Boyle, also nominated to the 4th Circuit, has patiently awaited action by the majority leader. It has been over a year and nothing.
Ninth Circuit Court of Appeals nominee William Myers has languished beside Mr. Boyle for more than a year as well. Right now, Frist’s own inaction is providing a safe haven for senators impeding the confirmation of these nominees.
The chilling effect that these delays have on our legal system and society is becoming more apparent to values voters across the nation. Judicial tyranny is trumping traditional values, such as advancing a culture of life and preserving marriage, which have been passed into law through a democratic process. Senate apathy only keeps the ball in the courts of judicial activists. The recent move by President Bush to resubmit the names of five stalled nominations, affords the Senate one final chance to wrestle the control back.
Judge Taylor’s decision should reignite the Senate’s work on judicial confirmations. It is time well-qualified men and women, marked by their judicial restraint, filled the ranks of our legal system. Obstructing their confirmation only undermines the role Congress performs in our society. Most importantly, judicial obstruction does a disservice to the citizens who send senators to Washington in the first place.