A Torturous Test for Bush's Judge Picks
August 20th, 2004 3:45 PM
Besides tax-code revision, the appointment of judges is probably the most
obscure, elite, yet hugely impactful process that unfolds in the hallowed halls
of federal government. The ordinary person could not be farther removed from an
official decision that may drastically affect his or her daily life. Or
drastically affect the life of some other poor soul.
In a Newsday op-ed this week, American University law professor Herman Schwartz
connects the dots that lead from the Bush administration torture memos to the
president's current or future judicial picks. Those memos, crafted after
Defense and Justice Department lawyers returned from prospecting along the
outer edges of human decency and international anti-torture agreements,
directed U.S. captors' controversially harsh treatment of detainees in the
current wars.
For instance, Schwartz points out that Jay Bybee, as a senior Justice Department
lawyer, wrote the controversial August 2002 memo-since repudiated by the
administration-that parsed the law on torture to forbid only those acts leading
to physical damage "such as organ failure." President Bush appointed Bybee to
the Ninth Circuit Court of Appeals a year later.
Conservatives have cried foul over political opposition to Bush's judicial
nominees-although they are happy to smear the "activist judge" epithet all over
anyone in a robe interested in vindicating gay equality, due process at
criminal sentencing, or a woman's right to choose.
But considering politics at the judicial nomination stage or earlier is not only
OK, but a crucial last chance. Once confirmed, the federal judge is a
politically insulated actor for life, and with good reason. No one wants judges
interpreting laws, or especially the Constitution, based on poll numbers or
pundits, since the right thing to do is sometimes extremely unpopular (take the
desegregation of public schools in the Deep South).
Merely because a judge came in as a conservative fave doesn't mean that he or
she will always be a party faithful, although it doesn't mean that he or she
won't. But just as the president and Senate appoint judges without any
guarantees, only a good sense of what they will do once on the bench, so the
voters pick presidents.
The next president will probably nominate at least two Supreme Court justices
and dozens of lower-court judges. The torture trail provides a good sense of
how President Bush and his picks think in one area. Voters should hear more
from him and opponent John Kerry on the judiciary each envisions.
http://villagevoice.com/issues/0433/lee3.php
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