The Los Angeles Times published an editorial on April 12, 2008 decrying the “petty warfare between Republicans and Democrats over nominations to the federal courts.” It is a Hatfield-McCoy feud that “has been going on so long that no one is sure when it started,” said the editors, who traced it as far back as 1968 when Republicans blocked Lyndon Johnson’s nomination of Abe Fortas to be chief justice. The Times Board of Editors needs to keep an American history book on the shelf, where they could have traced battles in Congress over judicial nominees back to the administration of George Washington. Anyway, the Times finds this a sorry state of affairs and urges “in the interest of justice” that the Bush nominees now awaiting Senate approval “not be put on hold in the hopes that a Democrat will be elected in November.”
The editorial drew this letter to the editor from yours truly, published April 16:
“The Times’ call for an end to partisan fighting over judicial appointments is noble but naive. Interpretation of law is always, and unavoidably, subjective because of the nature of giving meaning to texts. The judge’s personal and political values always, unavoidably, play a role. A study of all federal court decisions under the National Environmental Policy Act during 2001-2004, for example, revealed that environmentalists won 60% of the time with district judges appointed by a Democratic president but 28% of the time with judges appointed by a Republican. They won only 17% of the time with judges appointed by George W. Bush. Therefore, partisan blockage of judicial nominees in the Senate is entirely proper because we have few other ways to keep these black-robed policymakers accountable to the citizenry.
Professor of Law”
My letter triggered lively responses from a judge and from a number of my colleages in the law professoriate. The comments came to me by email, and not to this blog, but I will pass some of them on here as comments because they are worthy of a wider audience. I post them under the pen-name Publius, and I withold the authors’ names because I don’t know whether they wish to be publicly identified.