Senators behaving badly, with Gordon Lloyd (San Francisco Chronicle) November 18, 2003

The U.S. Senate had a sleepover the other night. They brought in cots and coffee urns and stayed up all night swapping stories about prospective federal judges. Of course, two senators from each party were present at all times, in case a senator fell asleep and the other party tried any practical jokes, such as actually confirming judges. So much for the “upper house” of Congress, the branch of government the founding fathers said should be occupied by a “temperate and respectable body of citizens.”

The biggest yawner of the 30-hour talkathon was seasoned politicians accusing one another of playing politics with judicial appointments. First, Democrats charged President Bush with nominating federal judges who line up with his political worldview. Then Republicans attacked Democrats for “partisan obstructionism,” using the Senate’s rules to block voting. Imagine, politicians playing politics!

Perhaps the good senators have not noticed, but there has been a sea change in the judiciary over the past 50 years. That very shift — from an independent judiciary to a highly practical one — has now overrun the selection process as well. If we are choosing the best and brightest to make independent judicial rulings, as we did for the first 175 years of the republic, that implies one kind of selection process. But if judges make most of the important political decisions in the United States, as they have in more recent years, selection will itself be highly political.

Experts agree that most of the important social and moral questions in America are now addressed in courts and not in legislatures. Think about education: First, Brown vs. the Board of Education set new standards for civil rights in schools; then came court-ordered busing schemes.

Now courts are deciding the extent to which affirmative action shapes college admissions. Right-to-life questions, such as euthanasia and abortion, have been decided by the courts, as have the way police questions suspects and conduct their investigations.

In fact, hyperactive federal courts seem to be cutting an even larger political swath lately. Courts essentially decided the 2000 presidential election, and a three-judge federal panel would have halted the California recall election if it could have. Even when Congress attempts to act — by passing a popular telemarketing law or a “partial-birth” abortion ban — some U.S. District Court judge wakes up the next morning and stops it. The questions senators, and all Americans, should be asking are not just about the judicial selection process, but what kind of role we are asking judges to play.

Perhaps it’s time for Congress and the president to stand up to the judiciary and say that a bill passed by a two-thirds or three-fourths of Congress, and signed by the president, has as much constitutional authority as what one judge in Denver or Oklahoma City might say about it. The Constitution should not belong to the courts alone, nor should our democracy become only what the courts say it should be.

Alternatively, we are left to admit that we no longer have “independent judiciary,” and that politics is now part and parcel of what judges do and how they are chosen. In that case, the U.S. Senate’s role of “advice and consent” becomes one of a “delay and deny” or “attack and filibuster.” Maybe senators should become more candid and, instead of trying to put their political arguments into ridiculous “independent judiciary” terms — saying a conservative California Supreme Court justice who got 76 percent of the vote is out of the mainstream — just say a prospective judge’s views are politically unacceptable. If a liberal or conservative president has the Senate votes to confirm his appointments, then the country shifts from liberal to conservative judges over time. If not, the Senate and the president must compromise.

The great American philosopher Yogi Berra said: “When you come to a fork in the road, take it.” We have reached such a crossroads in judicial selection, and senators need to face the new realities directly.

This op/ed appeared on Page A-27.