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August 11, 2002
Obstruction of Judges
By JEFFREY ROSEN
llen Snyder and John Roberts are two of the most respected appellate lawyers in Washington. They were at the top of their classes at Harvard Law School, and they went on to clerk for Justice William Rehnquist on the Supreme Court. Both ended up at the glamorous law firm Hogan & Hartson, where they became partners as well as friends, advising each other about ethical issues and preparing each other for arguments before the Supreme Court. In recognition of their exceptional talents, they were nominated by the president to sit on the U.S. Court of Appeals for the District of Columbia Circuit, widely viewed as the second most important court in the nation.
Roberts, a Republican, was nominated by the first President Bush; Snyder, a Democrat, was nominated by President Clinton. But neither nominee made it through the Senate, and together they stand as examples -- call them exhibits A and B -- of a crisis that has paralyzed the judicial nomination process for more than a decade.
Roberts was nominated by Bush in January 1992. The Senate, controlled at the time by the Democrats, refused to give him a hearing, and his nomination lapsed with Bush's defeat that November. In September 1999, Clinton nominated Snyder; the Senate, back in the hands of Republicans, refused to bring his nomination to a vote. Last May, the second President Bush renominated Roberts to the seat he was denied a decade ago -- but just when Senate Republicans were on the verge of scheduling a hearing, James Jeffords of Vermont renounced the G.O.P., and the Democrats took control once again. Now more than a year has passed since Roberts's second nomination, and the Judiciary Committee has still not scheduled a hearing and is in no rush to do so. ''I can't tell you,'' Senator Charles Schumer said when I asked if Roberts would get a hearing. ''I think it's the intention to have hearings on most of the nominees, although we're not going to be stampeded. What the ideologues want to do is stampede us.''
The confirmation process for federal judges is in something of a meltdown. Appellate nominations are now provoking a level of partisan warfare that used to be reserved for the Supreme Court. In a fit of recriminations, Democrats and Republicans are blaming each other for changing the rules of the game. James Buckley, a former judge on the D.C. Circuit, recently wrote an op-ed column in The Wall Street Journal accusing Senate Democrats of ''obstruction of justice'' for refusing to grant hearings to President Bush's appellate nominees. ''This extraordinary inaction is having a significant effect on the court's ability to handle its workload,'' he wrote. Democrats made identical charges against Republicans during the Clinton years.
Already this year the Democrats have rejected one Bush nominee, Charles Pickering, and are now trying to defeat another, Priscilla Owen, largely because of concerns about Roe v. Wade. And the recent decision by a federal appeals court in California striking down the Pledge of Allegiance has only fanned the partisan flames. ''This highlights what the fight over federal judges is all about,'' said the Senate minority leader, Trent Lott.
Despite the suggestion of Republicans, the federal appeals courts are not yet paralyzed by the slowdown of the confirmation process, which began during the first Bush administration. The U.S. Court of Appeals for the D.C. Circuit, which had 12 judges at its peak, has been able to function with four standing vacancies. (Indeed, Republicans argued during the Clinton years that the court had too little work to occupy 10 judges.) And the Pledge of Allegiance decision -- written by a Nixon appointee -- will almost certainly be reversed.
Like the fight over abortion, however, the Pledge of Allegiance decision is a symptom of a broader dysfunction in American politics: the legalization of the culture wars. That phenomenon, which is at the heart of the breakdown of the confirmation process, has its roots in the 1980's, when an army of interest groups on the left and on the right were created to lobby the courts for victories over cultural disputes that each side was unable to win in the legislatures. Right-wing groups resolved to use the courts to restrict Congress's power to pass antidiscrimination laws, affirmative action and environmental regulations, while left-wing groups pledged to extend the logic of Roe v. Wade to protect gay rights, the right to die and other forms of personal autonomy.
These groups cut their teeth on Supreme Court nominations, especially the conflagrations over Robert Bork and Clarence Thomas. But now there hasn't been a Supreme Court vacancy for eight years -- the longest period since the beginning of the 19th century. Biding their time until the next Supreme Court explosion, the interest groups have been working to justify their continued existence by turning their vast screening machinery on the lower federal courts. Both sides have urged sympathetic senators to treat each nominee to the federal appellate courts as a Supreme Court justice in miniature, and to ask the nominees not merely whether they would follow Supreme Court precedents like Roe v. Wade but also whether they personally agree with them.
This strategy makes no sense. Unlike Supreme Court justices, lower-court judges are required to apply Supreme Court precedents, rather than second-guess them. By treating every appellate-court nomination as a dress rehearsal for a
Supreme Court battle to come, the Senate and the interest groups have created the misleading impression that lower-court judges are more polarized and less constrained than they actually are. In fact, on the best functioning appellate courts, there are clear right and wrong answers in most cases that judges, Democrats and Republicans alike, can identify after careful study of the complicated facts and relevant precedents. By subjecting lower-court nominees to brutalizing confirmation hearings in the Supreme Court style, the Senate is contributing to the Clarence Thomas syndrome, which occurs when a judge is so scarred and embittered by his confirmation ordeal that he becomes radicalized on the bench, castigating his opponents and rewarding his supporters. In short, by exaggerating the stakes in the lower-court nomination battles, interest groups on both sides may be encouraging the appointment of judges who will fulfill their worst fears.
s a case study in the way that nominees on both sides are being caricatured by the confirmation process, I arranged to meet with Allen Snyder and with John Roberts. Snyder, who is 56, is based at home these days; after his nomination died in the Senate in 2000, he resigned his partnership at Hogan and took early retirement.
Quiet and mild-mannered, Snyder exudes moderation and weighs his words carefully. But he is clearly still frustrated by the fact that the opposition to him was almost entirely masked. ''As a nominee, you get virtually no information as to what's going on,'' he said in a conversation at Hogan & Hartson. ''I got a call the afternoon before that I was getting a hearing the very next morning.'' Snyder's hearing in May 2000, eight months after he was nominated, was something of a lovefest. Though he was nominated by Clinton, he had the support of several influential conservatives, including his former boss, Chief Justice Rehnquist, and Robert Bork, who worked with him on behalf of Netscape in the Justice Department's suit against Microsoft. At the hearing, whose chairman was Senator Arlen Specter of Pennsylvania, Snyder proclaimed his devotion to judicial restraint. ''Senator Specter congratulated me on how well things had gone and told me he was confident I would be confirmed and told me I would be a great judge,'' Snyder recalls. ''And then the committee never took a vote.''
A week after the hearing, The Wall Street Journal wrote a vicious editorial attacking Senator Orrin Hatch for having granted Snyder a hearing in the first place. Titled ''A G.O.P. Judicial Debacle?'' the editorial's only charge against Snyder was that he served as a lawyer for Bruce Lindsey, President Clinton's White House counsel. Calling the nomination Snyder's reward for ''counseling the consigliere,'' the editorial pointed out that ''conservatives still hold a 6-4 ideological edge on the D.C. Circuit on most issues'' and that Snyder's confirmation might mean ''a 5-5 split that could haunt the first year of a Bush Presidency.'' Blaming the Democrats for having ''established a precedent for sitting on election-year nominees'' by denying a hearing to John Roberts in 1992, the editorial concluded, ''If Senator Hatch lacks the backbone, we suspect the nomination could still be stopped with the right phone call -- to Senate Majority Leader Trent Lott from George W. Bush.'' Shortly after, Snyder was told that Lott had decided to kill his nomination.
''I think what happened to John Roberts and others caused there to be a sense of payback,'' Snyder says.
A few days after meeting Snyder, I returned to the 13th floor of Hogan & Hartson to meet Roberts. If Snyder is quiet and gently formal, Roberts, 47, is boyish and ebullient. Although he felt frustrated and out-of-sorts during the wait for a hearing during his first nomination, now, during his second, he is 10 years older and resolved to be more patient, fully aware of the uncertainties ahead. The Democrats have not yet decided whether they will give Roberts a hearing. And even if he does get a hearing, his candidacy has been thrown into further question by the Democrats' decision to make each confirmation a referendum on a single case: Roe v. Wade.
In 1990, when he was a deputy solicitor general, Roberts signed a brief in a case about abortion financing that included a footnote calling for Roe v. Wade to be overturned, the Bush administration's official position at the time. ''I think that raises very serious questions about where he is on this issue,'' I was told by Kate Michelman, the head of the National Abortion and Reproductive Rights Action League. Was it really fair, I asked, to hold Roberts accountable for defending the Bush administration's position, which was after all his job? ''I think Roberts is going to have to speak directly as to whether or not he believes that the Constitution protects the right to choose,'' Michelman replied, ''and if not, then I think he should not sit on the bench.''
Michelman's challenge -- that all Bush's judicial nominees must swear a loyalty oath not merely to accept Roe but personally to embrace it -- is one that several Democratic senators on the Judiciary Committee have taken up. Several of the Democrats say they are haunted by the example of Clarence Thomas, who swore at his confirmation hearing that he believed that the Constitution protects a right to privacy and then promptly voted to overturn Roe v. Wade. To avoid a repeat of this, Senate Democrats have decided to ask nominees not merely whether they would apply Roe v. Wade in the future but whether they have questioned it in the past.
In the case of Priscilla Owen, a nominee to the federal appeals court in Texas, the Democrats' concerns are arguably justified: even President Bush's White House counsel, Alberto Gonzales, called Owen's attempt to narrow a Texas law allowing minors to have abortions without their parents' consent ''an unconscionable act of judicial activism'' when he was a colleague of Owen's in Texas. But the Democrats have also opposed other nominees who had no clear judicial record on abortion. During the confirmation hearing earlier this year for Charles Pickering, whom the Judiciary Committee ultimately rejected, Senator Maria Cantwell of Washington State pressed Pickering to explain where, precisely, he found a right to privacy in the Constitution. ''My personal view is immaterial and irrelevant,'' Pickering responded, adding that he would follow Roe v. Wade. (The exchange shook a conservative friend of mine. ''She wanted to know what was in Pickering's soul,'' he marveled.)
Many lawyers and law professors -- on both sides of the abortion issue, Democratic as well as Republican -- view Roe as a loosely reasoned decision that failed to explain convincingly why the Constitution protects the right to choose during the first trimester of pregnancy. Nevertheless, after the Supreme Court reaffirmed Roe in 1992, not even the most conservative lower-court judge in the country has refused to apply it for a simple reason: lower-court judges are required to follow Supreme Court precedents whether they like them or not.
By putting abortion at the center of the lower-court nomination battles, the Democrats seem more interested in placating liberal interest groups than in examining the issues that the lower-court judges actually decide. ''Kate Michelman is very helpful to us in identifying problems with nominees,'' says a Democratic Senate staff member, ''and in deciding who is vulnerable.''
But the Democrats' extremism on the abortion question is matched by the extremism of the right. The man who has been called the leading judicial attack dog on the right is Thomas Jipping. He recently moved from the Free Congress Foundation to a group called the Concerned Women for America, whose mission is to ''bring Biblical principles into all levels of public policy.'' This means outlawing abortion, promoting school prayer and fighting all pornography and obscenity. Jipping defines a judicial activist as anyone who accepts three decades of Supreme Court precedent in abortion cases. ''This entire abortion area is just an exercise in judicial invention,'' he told me. ''I have not heard of a Clinton nominee who embraced judicial restraint.''
Taking an even more combative view of the culture wars, Robert Bork, the rejected Supreme Court nominee, recently wrote a polemic in The New Criterion urging conservatives to relitigate the entire 20th century. Describing a pitched battle between the ''traditionalists'' and the ''emancipationists,'' Bork wrote that the courts, and especially the Supreme Court, are ''the enemy of traditional culture,'' in areas including ''speech, religion, abortion, sexuality, welfare, public education and much else.'' ''It is not too much to say,'' Bork argued, ''that the suffocating vulgarity of popular culture is in large measure the work of the court.''
Bork is living in a dystopian time warp. As sociologists like Alan Wolfe and Francis Fukuyama have demonstrated, social conservatives largely lost the culture wars in the 1990's not because of the Supreme Court but because of MTV, the Internet, the expansion of sexual equality and other democratizing forces of popular culture. Nevertheless, because a minority of extreme Republican and Democratic interest groups and judges refuse to accept the Supreme Court's relatively moderate compromises on abortion and religion, our confirmation battles continue to be fought over the most extreme positions in the culture wars, which the American people have already rejected.
This is particularly true on the court to which Roberts and Snyder were nominated. The U.S. Court of Appeals for the D.C. Circuit hasn't heard an important abortion-rights case in living memory. Instead, the D.C. Circuit focuses on the less sexy but no less important issues concerning the limitations of federal power and the boundaries of the regulatory state. There is a pitched battle among liberal and conservative judges, from the Supreme Court on down, about whether the Constitution imposes meaningful limits on Congress's ability to regulate the environment, the workplace and affirmative action. Here it is the Republicans who want to use the courts to strike down laws passed by legislatures and the Democrats who are defending judicial restraint. For this reason, Senator Schumer has vowed to ask all Bush nominees what they think of the Supreme Court's recent decisions limiting the scope of federal power. Schumer argues plausibly that since President Clinton, by and large, appointed moderate rather than extremist Democrats to the appellate courts, the Senate should ensure balance by screening out extremist Republicans.
Asking the nominees their views about federalism is a more appropriate way of smoking out extremists than grilling them about Roe v. Wade. But even when it comes to the debates over federalism, the D.C. Circuit today is far less polarized than the confirmation battles it has ignited might suggest. Eleven years ago, when I was a law clerk for Abner Mikva, then the chief judge of the D.C. Circuit, the liberal and conservative judges were at one another's throats. On the left and on the right, a few of the judges had strong ideological agendas and aggressive personalities, and this combination led them to fight constantly over internecine issues.
Over the past decade, however, the personalities on both the D.C. Circuit and the legal landscape in America have mellowed. Many of the most bruising legal battles in the culture wars have been settled by the Supreme Court: now that the justices have significantly restricted the discretion of lower courts in cases involving criminals' rights, for example, there is far less for lower-court judges to fight about. In fact, an alliance between libertarian Republicans and libertarian Democrats has produced important victories for privacy and free expression since Sept. 11.
Moreover, President Clinton's appointments to the D.C. Circuit have won the respect of their conservative colleagues for their personal as well as their judicial moderation. Because the judges now trust one another enough to reason together, fewer than 3 percent of the cases between 1995 and 2001 provoked any dissenting opinions at all. In an impressive sign of the court's bipartisanship and mutual trust, all seven judges joined together last June to find Microsoft liable for antitrust violations.
Federal courts, as it happens, are very much like university faculties: small groups of prima donnas, often with too much time on their hands, whose political dynamics can be shaped as much by personalities as by reasoned arguments. On a small court, the addition of one or two disruptive figures can change the dynamics of the entire group, causing Democrats and Republicans to gravitate toward increasingly extreme positions in order to signal their allegiance to one side or the other. Once a court has been polarized, moreover, it can easily deteriorate into a group of squabbling children. The U.S. Court of Appeals for the Sixth Circuit demonstrated this tendency in its recent opinion upholding the University of Michigan Law School's affirmative action program. One of the dissenting judges published a remarkable appendix accusing the chief judge of having cherry-picked the judges on an earlier panel to reach a predetermined result.
The D.C. Circuit at the moment is one of the best-functioning courts in the country. It would be bad for the law and bad for the future of the regulatory state if President Bush's successful nominees were so embittered by their confirmation ordeals that, like Clarence Thomas, they arrived on the court in the mood for payback. Instead of flyspecking their views about Roe v. Wade, therefore, it would make more sense for the Senate to explore whether nominees like John Roberts have the judicial temperament and personal humility to defer to Congress and to apply the Supreme Court's precedents. Judicial temperament is often hard to predict; but for what it's worth, I was struck in a wide-ranging conversation by Roberts's sense of humor, apparent modesty and above all his Jimmy Stewart-like reverence for the ideal of law shaped by reasoned argument rather than by ideology. ''If I were inclined to do something that I would find politically satisfying and that I didn't feel I could adequately defend in an opinion,'' Roberts told me, ''it would embarrass me to put that out in front of'' the Clinton appointees on the court, whom he has known for years and respects.
After talking to Roberts and Snyder, in fact, I had the impression that they would agree in more cases than they disagreed, and that both had the sheer legal ability that sometimes distinguishes judges who care about working to identify the right answer from those who are driven by ideological agendas.
''John is one of the most brilliant minds in this or probably any other city, and he clearly meets anybody's tests for qualifications and legal background,'' Snyder says.
''I can't see much difference in terms of how Allen and I would approach cases,'' Roberts says. ''He thinks there is an answer, and the harder you work, the more likely you are to get it, and to get it right. I think we share that.'' The Senate -- and the nation -- may never find that out.
Jeffrey Rosen is an associate professor at George Washington University Law School and the legal affairs editor of The New Republic. His last article for The Times Magazine was about the C.I.A. and Silicon Valley.
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