The far right continues to whine about how they are being mistreated by the judicial branch of our government. They wail about liberal activist judges who use their own personal views to create new laws from the bench. Focus on the Family founder, the so-called Rev. James Dobson, rants regularly about “judicial tyranny” and likens the Supreme Court to the KKK, “I heard a minister the other day talking about the great injustice and evil of the men in white robes, the Ku Klux Klan, that roamed the country in the South, and they did great wrong to civil rights and to morality. And now we have black-robed men, and that's what you're talking about.” Earlier this year, the Rev. Pat Robertson said that Federal judges were a greater threat to this country than the 9/11 terrorists.
Let’s just look dispassionately at some of the facts. Richard Nixon was elected in 1968. George W. Bush will leave office in 2008. That’s a 40-year stretch. In that period we have had five Republican presidents (Nixon, Ford, Reagan, Bush pops and the Bush baby) who served (or will serve) for a total of 28 years. We had two Democrats (Carter and Clinton) who served for a total of 12 years. So for nearly three-fourths of the 40 years, Republicans have been nominating the judges to sit on the Federal bench.
But wait, it gets even better. For 6 of the 8 years that Bill Clinton was in office, the Republicans controlled the Senate. Many of his nominees (65) did not even get out of committee for a vote on the floor. So for just 6 years of the 40-year span from 1968 to 2008 (four years under Carter and two under Clinton), the Democrats controlled both the White House and the Senate simultaneously and could appoint whomever they chose to the Federal bench. During the remaining 34 years, the Republicans controlled either the nominating process (the presidency) or the confirmation process (the Senate). Yet, to hear the conservatives whine, we are to believe that the Federal judiciary is inundated with liberal judges. How could the Democrats have pulled this off when Mark Shields, a liberal columnist, is always saying they are so confused with different interest groups pulling in different directions that they couldn’t organize a 3-car funeral?
Some additional numbers might be further enlightening. That Supreme Court that Dobson likens to the KKK consists of 7 justices appointed by Republicans and 2 appointed by Democrats. Of those two, Ruth Bader Ginsburg was confirmed by the Senate by a 97 – 3 vote and Steven Breyer was confirmed by a vote of 87 – 9.
On the state and local level, many judges are elected as in Texas and here in California. Therefore the claim that judges are freewheeling and unaccountable holds no water.
Indeed there are activist judges of both liberal and conservative stripes. Twenty-five years ago, when I first moved to California, the Chief Justice of the state supreme court was Rose Bird. Rose Bird was opposed to the death penalty. She made it clear that any death penalty appeal that reached the court would be overturned, and she lived up to that promise. Now I am somewhat ambivalent about the death penalty. But I am not ambivalent about a judge saying that she will ignore the law and apply her own bias to any case that comes before her. I, like millions of other Californians, voted for her recall, and she was thrown off the court. So much for the claim that judges are unaccountable.
Memo to conservatives: stop whining. They’re your judges.