Carts, horses, and Senate Judiciary Committee chairmen

I have a due, but not undue, appreciation of lawyers and judges — having been one of the former for twenty-four years, and having spent my first of those twenty-four years working as a law clerk to one of the latter and the rest of my career arguing before others.  Among my core principles — not just as a lawyer, but as a citizen-student of, and participant in, our democratic republic — is that judges' duties do not include "taking up the slack" whenever they perceive legislators to have been insufficiently progressive or enlightened. Give me instead the judge who has the wisdom and courage to say, "That may be a wise and good idea, counsel, but it's not my job to implement it. You're in the wrong forum, and you need to seek relief elsewhere if you're to get it."

Abortion is an issue that I've not blogged about very much. I'm in that odd group of people in the middle who are highly critical of Roe v. Wade and its progeny as a matter of constitutional law, but who — despite being sympathetic and respectful of those on either end of the spectrum on this issue — are not absolutely against all abortions as a matter of social and ethical policy. The reason I haven't blogged much about the subject in detail, and don't intend to, is that I don't feel that I have much to add to the debate beyond some very subjective, and somewhat muddled, personal views that I'm frankly not inclined to spread on the internet.

But while I respect the intensity of the passion of folks on both sides of the political debate about abortion, I'm frustrated when they use the issue — and try to enlist the passions of those who agree with them — on broader issues with more sweeping ramifications. I mean no disrespect to the single-issue voters on either side of the abortion issue. But I respectfully and firmly submit that how we, as a nation, go about selecting and confirming judges to hold lifetime appointments on our federal courts is by definition a broader issue with more sweeping ramifications, because abortion cases are only a tiny fraction of the cases — by volume or by significance — that federal courts must decide every day, every year.

During the year that I clerked on the Fifth Circuit, my judge handled (and I was privileged to assist her on) hundreds of cases — many involving life or death issues, others involving tens and hundreds of millions of dollars, and others involving important cutting-edge precedents in every conceivable area of the law. What we were doing, just one step removed from the Supreme Court and subject only to its (or the en banc Fifth Circuit's) rare review, was extremely important — to us, to the litigants before us, to the litigants and citizens who'd be affected by the precedents we set, and hence to the nation. But we didn't have a single abortion case that year in our chambers.

So as I've previously written (at less length, although there are some fabulous comments on that post arguing both sides), I'm disappointed that the debate over whether Pennsylvania Senator Arlen Specter should assume the chairmanship of the Senate Judiciary Committee has focused so much on his own views about abortion and on how judges who are before that committee might approach the legal issues on abortion. And thus, I'm frankly disappointed to read that Texas Senator and Judiciary Committee member John Cornyn — whose own service as a state-court trial and supreme court judge, and as a state attorney-general, give him ample cause to know better — may be falling into that rhetorical and political quagmire:

A conservative member of the Senate Judiciary Committee said he could support Sen. Arlen Specter (R-Pa.) as chairman of the committee if Specter issued a public statement saying he would not try to block a Supreme Court nominee who opposes abortion rights.

Sen. John Cornyn (R-Tex.) said Specter assured him in a conversation Tuesday he would push for swift up-or-down votes on nominees without regard to their positions on abortion. Cornyn indicated he was satisfied by Specter's comments but wanted them expressed in an official statement.

Asked if he thought Specter would get the chairmanship, Cornyn said, "Today, yes, I do."

Cornyn also said Specter is seeking a meeting with Republicans on the judiciary panel next week to resolve doubts prompted by his comments last week suggesting that the Senate was unlikely to confirm nominees who would overturn the 1973 Supreme Court decision legalizing abortion nationwide. Conservatives have flooded the Senate with protests, urging Republicans to reject Specter as chairman.

Now, it's possible that Sen. Cornyn sees the big picture, and that the WaPo reporter or editors — as would be typical of members of the press — picked the abortion issue as their lede and main focus even though Sen. Cornyn may have intended not to emphasize it. But the chairmanship of the Senate Judiciary Committee is important for many, many reasons having nothing whatsoever to do with abortion.

My own reasons for opposing Sen. Specter for that important position have nothing to do with abortion. They have everything to do with the fact that based on his statements and his record, I simply don't trust the man to ably and consistently and enthusiastically and loyally support the President in his commitment to appoint federal judges who believe that their duties do not include "taking up the slack" whenever they perceive legislators to be insufficiently progressive or enlightened. I don't believe the chairmanship is Sen. Specter's entitlement. The Senate's rules no longer require that he get it based on seniority, and the residual custom and presumption can and should be overcome in appropriate circumstances, which I believe exist here. I don't believe he's earned it as a reward; to the contrary, his conspicuous lethargy in supporting the President's reelection, after the President had supported him in a hotly contested primary, argues that he's entitled to no such reward. And I think that the risks of opposing him for the position, as argued by my esteemed friend Hugh Hewitt and others, don't justify the risks he poses if he gets the position.

To ensure democratic accountability in our republic, we need judges who understand what their role is — and what it isn't. As important as the abortion debate may be — as a matter of constitutional law, public policy, morality, ethics, and religion — it's not the only thing, or the most important thing, at stake here. Focus on the horse and where it's headed; the cart and its various contents, both precious and common, will follow, and can be adjusted appropriately as needed afterwards.