BY ALLISON WHITE
In Washington, Chuck Schumer spends his days defending our federal benches against a scourge most nefarious: “ideological nominees” (read: Federalists and fundamentalist Christians and Catholics) hell-bent on replacing the Constitution with their own morality and politics.
While Schumer is not generally one to change course on account of, frankly, facts and other indicators of reality, someone should warn him: given the last couple of months, he should start looking for dangerous ideologues in different places. He won’t find them in Alabama, at Gibson Dunn, or near Robert Bork’s office. He will find them, however, on the Ninth Circuit.
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Schumer’s assualt on judicial nominees has centered around the rallying cry that judicial conservatives are dangerously prone to pursuing their own political agendas from the bench. He most recently directed this charge at Alabama Attorney General Bill Pryor, an unabashed political conservative who gladly admitted before the Senate Judiciary Committee that Roe was a tragedy, not just for its jurisprudential vacancy but also for its practical effect: the slaughter of countless unborn babies. Pryor’s eager answers – as supplemented with the assurance that, were he a judge, he would decide according to precedent and the Constitution, not his politics – earned him a “filibuster” in the full Senate.
Schumer’s charge was shown to be an exaggeration when Pryor proved his mettle amidst August’s controversial fight over the Ten Commandments. Pryor enforced a federal judge’s order to remove the Ten Commandments from the state courthouse over the protest of Chief Judge Roy Moore. Pryor’s effort stood as a testament to his devotion to duty over Deity, but Schumer has yet to relent in his charge that Pryor is a threat to the rule of law.
Solicitor General Ted Olson, while not a judicial nominee, is another example of a political conservative who pursues his legal duty over his own political convictions. Last week, Olson – former Bush counsel and hero to Federalists everywhere – argued in defense of the Bipartisan Campaign Reform Act. This assault on both federalism (BCRA displaces a large bulk of local election law) and free speech is hardly consistent with Olson’s politics, but its defense is consistent with his duty as SG. Nary a word of praise from those devoted to destroying lawyers of Olson’s ilk.
With that in mind, the decision by Miguel Estrada to withdraw his nomination to the federal bench is woeful. Estrada – a talented Harvard attorney – was rejected without vote solely because of his politics. Of course, when he is filibustered while other obvious conservatives – such as the eminently qualified John Roberts – are voted in with minimal dispute, it is impossible not to wonder if this was a dispute not over conservatism but over Hispanic conservatism. Not that that point matters anymore. Schumer has mooted the point.
“Adam,” you ask, “are there no dangerous ideologues in our legal system?” Of course there are … and you can find them most easily on the Ninth Circuit. In a largely unreported development this June, an Appeals Court judge refused to follow Supreme Court rulings in a “three strikes” case, saying, “In good conscience, Icannot vote to go along with the sentence imposed in this case.” This judicial insubordination came from the chambers of Carter appointee Harry Pregerson, the oldest active member of the court and a jurist whose fitness to serve has yet to be questioned by Sen. Schumer.
In a less-than-happy coincidence, Judge Pregerson sat on the panel that stopped the voter-initiated recall of California’s governor, cynically citing not only the opinion for the Court in Bush v. Gore (a questionable analogy, as argued this week by HLS’ Elhauge and Yale’s Ackerman), but also the attempt to build a democratic Iraq.
The two other Recall judges were no strangers to politics, either. As noted on National Review Online Tuesday, Judge Richard Paez’s vigorous public opposition to California’s Proposition 209 – an anti-affirmative action bill – was furthered in the court’s ruling, which delays not only the Recall but also the 209 vote. The third judge on the panel, Judge Sidney Thomas, moved to apply a procedural development retroactively, possibly leading to the overturning of 100 capital convictions.
Of course, no other Circuit has approved of such retroactive application. Not the Fourth, the Eleventh, the Fifth. Only the Ninth would so eagerly apply ideology instead of the rule of law. Still, Chuck Schumer’s bitter crusade against ideology rages at the usual targets of Liberal ire: Alabama, Texas, and any Hispanic household that might vote “