Of all the grave responsibilities the Constitution assigns the president, appointing federal judges ranks among the most important. Former Senate Majority Leader Bob Dole correctly said that it is perhaps a president's "most profound legacy." This is because the kind of judge a president appoints will either strengthen or undermine the foundation of liberty. This is the first of several speeches I will make on this important topic.
On May 9, 2001, sending my first judicial nominations to the Senate, I repeated the commitment I made during the campaign about the kind of judge I would appoint. I reaffirm that commitment today. Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench.
That may sound like a slogan to some, a law-school seminar topic to others. But to America's founders, the distinction between judges interpreting and making law was the difference between liberty and tyranny. Liberty still requires that all government officials, who swear to support and defend the Constitution, act only within their proper constitutional limits. My judicial appointments will consistently reflect my commitment to liberty over tyranny.
We live in a culture that questions the meaning of everything, that rejects the existence of objective truth. In this ends-justify-the-means culture, people say, there is always a way to get what you want. The only thing that matters is winning or losing, not how the game is played. Some say it makes no difference whether judges or the people make decisions about public policies or cultural values. It's not about liberty, it's about winning.
Like America's founders, I reject that destructive path and will not, I repeat, will not appoint the kind of judge who will contribute to it. The essential power of self-government, the power to run the country and define the culture, belongs to the people, not to judges.
I was initially hopeful that the confirmation process would be fair and relatively efficient. The future chairman of the Judiciary Committee, Senator Patrick Leahy, had endorsed my proposal to give judicial nominees an up-or-down Senate vote within 60 days of nomination. He once had said that more than 50 judicial vacancies was a crisis that must be remedied.
It appears that hope was unfounded. The Senate confirmed just 28 of a record 65 nominees last year, the lowest confirmation rate in decades. While the Senate confirmed 128 judges in the first two years of my predecessor's administration, the Senate has so far confirmed just 59 of my nominees. Judicial vacancies, which Supreme Court Chief Justice William Rehnquist has called "alarming," are more than 10 percent higher than on inauguration day and nearly double what Senator Leahy once called a crisis. The confirmation rate for my appeals-court nominees is a mere one-third of what my three predecessors enjoyed.
Senate Democrats once said that the American Bar Association's rating was the "gold standard" for evaluating nominees. Yet time after time, they have attacked and opposed nominees even the ABA says are "well qualified."
Senate Democrats once said they would quickly consider "noncontroversial" nominees, those supported by home-state senators. Yet dozens of my nominees languishing in the confirmation pipeline are strongly supported by both home-state senators.
In the end, this dispute is not about quantity; it is about quality. It is not about the number of judges, but the kind of judges, that should sit on the federal bench. Opponents of my judicial nominees believe that judges should not interpret the law, but should legislate from the bench. They believe judges, not the people, should make law. As one Democratic senator is urging, they say judges should have the right ideology, code for judges whose decisions will advance the liberal political agenda.
I realize that our representative democracy may be less efficient, less predictable, than simply asking judges to impose a political agenda. But liberty requires that the people govern themselves.
I will continue nominating judges who know they have but one role, to interpret and apply the law the people give them. I call on the Senate to promptly evaluate my nominees using legitimate criteria and to vote them up or down. And I call on the American people, all those who love liberty, to defend liberty by helping me appoint the kind of judge who will let "we the people" govern ourselves.
- Tom Jipping is a senior fellow in legal studies at Concerned Women for America in Washington