Hill Republicans Target `Judicial Activism'

Conservatives Block Nominees, Threaten Impeachment and Term Limits

By Joan Biskupic
Washington Post Staff Writer

House Majority Whip Tom DeLay admits he is trying to intimidate federal
judges.

"The judges need to be intimidated," the Texas Republican said. "They need to
uphold the Constitution." If they don't behave, "we're going to go after them
in a big way."

When Senate Judiciary Committee Chairman Orrin G. Hatch (RUtah) tried to
explain last week why one Californian's nomination to an appeals court has
been delayed for two years he said, "If you want to blame somebody for the
slowness of approving judges to the 9th Circuit, blame the Clinton and Carter
appointees who have been ignoring the law and are true examples of activist
judging."

Republicans in Congress are engaged in a broadbased, sustained effort
targeting the federal bench. GOP lawmakers have talked about impeaching
judges for unpopular decisions, proposed term limits and suggested reducing
the number of appeals judges. They have held hearings on "judicial activism"
singling out judges who they think have gone beyond interpreting the law
to making it and offered legislation that would shrink a judge's
authority.

Complaints about the judiciary are as old as the institution itself, but the
current attack on the bench is something fresh in degree and duration.

Hatch's comments are some of his strongest ever linking Senate delays in
approving the president's nominees to conservatives' fears of liberalism on
the bench. The consequence of liberal judges, Hatch and other critics say, is
that today's courts are too quick to intervene in problems that belong to
legislatures, go easy on criminals and wrongly create new rights for
individuals at the expense of the majority.

Sheldon Goldman, a University of Massachusetts political science professor
who has tracked judicial nominations for four decades, contends all of the
GOP efforts "hang together by a common thread, which is to deny the Clinton
administration as many nominations as possible." He calls the delay in
confirmations "unprecedented in its scope . . . a congressional analogue of
President Franklin Roosevelt's courtpacking plan of 1937. Both Roosevelt's
courtpacking and the Republican's courtblocking plans had their genesis in
displeasure with court decisions."

Sen. Patrick J. Leahy (Vt.), the senior Democrat on the Judiciary Committee,
calls it "an extraordinary effort not only to seriously undermine the
workings of the federal court system, but to go after its independence.
Budgets will come and go. Trade agreements will come and go. But once you
undermine the independence of the judiciary, it will take generations to
reverse it."

Those concerns are echoed in an American Bar Association report asserting
that the current erosion between Congress and the courts could threaten
judges' independence. "While there is nothing new about judicial criticism,"
the report from the bipartisan ABA commission said, "there are aspects of the
present cycle of political debate that are relatively new and lack clear
precedent. . . . In recent years . . . an unfortunate shrillness has often
marked the tenor of interbranch discussions. This new skepticism has caused
some to fear that Congress is seeking to overregulate the courts in ways
that are not keeping with a truly independent judiciary."

Hatch voiced his complaints about the liberal bent of the Californiabased
9th Circuit when asked about William A. Fletcher, a University of
CaliforniaBerkeley law professor whose nomination has been pending for two
years.

In an episode last year dubbed "Throw Mama from the Bench" by Senate staff,
Republicans had said Fletcher could not be confirmed until his mother, Betty
Binns Fletcher, who is a judge on the 9th and a strong liberal, promised to
retire. The Republicans invoked an archaic antinepotism law that had not
been used on recent nominees with familial conflicts. Betty Fletcher agreed
to retire when her son actually gets approved.

The targeting of judges comes at a time when the bench is far more
conservative than it has been in recent decades. The Supreme Court, at the
top of the third branch and setting the rules for lower courts, is requiring
more scrutiny for affirmative action and racebased policies, curtailing
appeals by death row inmates and giving states more authority at the expense
of Washington lawmakers.

President Clinton's judges who make up about onefourth of the whole
judiciary are generally pragmatic moderates. A study by three political
scientists published in Judicature magazine found Clinton's judges less
liberal than President Jimmy Carter's and more akin to GOP President Gerald
R. Ford's appointees.

But there are are exceptions, and certain rulings have become rallying points
for Republicans who complain about judicial activism. While the GOP efforts
are not monolithic (Hatch and Senate Majority Leader Trent Lott, for example,
oppose using impeachment, as DeLay would, to punish unpopular rulings) there
are a handful of decisions all critics rely on:

A March 1996 ruling by U.S. District Judge Harold Baer of New York to
suppress drug evidence seized by police who became suspicious when men began
running away from a car as the officers approach. Baer said that in that
particular neighborhood people reasonably feared and ran from police, so the
officers did not have sufficient reason to believe that a crime had just
occurred and to stop and search the car. Prosecutors asked Baer to reconsider
his decision to suppress the drug evidence found in the car, and Baer
reversed himself. During that period, thenSenate Majority Leader Robert J.
Dole (RKan.), who was making Clinton's judicial choices a presidential
campaign issue, and House Speaker Newt Gingrich (RGa.) threatened
impeachment.

After that incident, in which the Clinton White House also complained about
Baer, four judges on a New Yorkbased appeals court issued a statement saying
attacks had gone too far and noting that most rulings are subject to appeal.
"When a judge is threatened with a call for resignation or impeachment
because of disagreement with a ruling, the entire process of orderly
resolution of legal disputes is undermined," the judges said.

A decision last December by U.S. District Judge Thelton E. Henderson blocking
enforcement of California's Proposition 209, which banned the use of race and
sex preferences in state hiring and college admissions. The 9th Circuit Court
of Appeals reversed Henderson a few months later; yet, the initial order has
become a catalyst for complaint and legislation, including a bill by Rep.
Sonny Bono (RCalif.) that would require that a threejudge panel, rather
than a single judge, hears cases involving lawsuits against voter
initiatives.

A 9th Circuit decision in August blocking the scheduled execution of
convicted murderer and rapist Thomas Martin Thompson and allowing him another
appeal. The state contends the 9th Circuit judges violated a 1996 federal law
intended to cut down on such appeals. Said Hatch: "Clearly, these are judges
who don't understand the rule of law. That's the type of stuff that is
causing this administration all kinds of trouble."

A recordlow number of judges were confirmed in the last Congress. The pace
has picked up this session, but as of Friday there were 97 vacancies on the
845member bench. Thirty of those vacancies have been pending for more than
18 months.

The administration, which has sent up nominations for 50 of the vacancies,
until recently had its own problems putting up names in a prompt fashion.
Clinton has said virtually nothing about GOP attacks on the bench, but in a
speech last month Attorney General Janet Reno said: "Surely the
[Constitution's] framers did not intend Congress to obstruct the appointment
of muchneeded judges, but rather simply to ensure that wellqualified
individuals were appointed to the federal bench."

Jonathan Yarowsky, special associate counsel to the president, said last week
that if senators use the "amorphous concept of judicial activism" as a
measure of a nominee's fitness for the bench, delays are likely to persist.
"Certainly, threatening calls for the mass impeachment of sitting judges only
roil the waters further," he said.

DeLay, who has taken the lead in urging for impeachments, has yet to initiate
a formal complaint against any judge. "You have to have a good candidate for
impeachment, in order to make it stick," he said. "We are doing a lot of
research on judges' records to see what kinds of attitudes they have."

Judges have said little publicly on whether all this is getting to them.
Supreme Court Justice Antonin Scalia, an outspoken conservative, said he did
not think the move to impeach liberal judges was going anywhere and added,
according to an Associated Press report, "I think . . . it shouldn't go
anywhere."

Chief Justice William H. Rehnquist has said it is fine to criticize judges
but asserted that critics should not try to force a judge from the bench
because of his or her rulings. The independence of the judiciary, Rehnquist
said, is "one of the crown jewels of our system of government today."

Some judges have protested pending legislation. Appeals Court Judge J. Harvie
Wilkinson said a plan to allow dissatisfied litigants to remove a trial judge
from a civil case would cause judgeshopping and inject a "new and
unnecessary element of gamesmanship" into lawsuits. And Procter Hug Jr.,
chief judge of the 9th Circuit, has argued against a plan to divide up that
large circuit covering nine states and two territories a proposal driven
in part by dissatisfaction with the court's liberalleaning decisions on
environmental issues.

Johnny H. Killian, a Congressional Research Service legal analyst and a
member of the ABA commission on judicial independence, said lifetenured
judges are able to fend for themselves. But he said the atmosphere is likely
to cause some judges "to look over their shoulder." But another commission
member, Theodore B. Olson, who was an official in the Reagan Justice
Department, said: "The federal judiciary is not under any serious or
significant attack. . . . I don't know any judge who acknowledges having made
a decision because of the pressure."

Hatch said if judicial independence is compromised it will not be because of
GOP criticism, rather because of the actions of judges themselves. "The
judges are going to undermine their own independence," he said. "This is an
important battle for the constitutional fabric of this country."

Staff researcher Barbara J. Saffir contributed to this report.

_ Copyright 1997 The Washington Post Company