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JUDICIARY

'Activist' Judges Focus of Latest Partisan Tug-of-War

May 15, 1997|ROBERT SHOGAN | TIMES POLITICAL WRITER

WASHINGTON — The two parties may have reached a temporary budget truce, but the inherent tensions between a Republican Congress and Democratic president are spilling over into a power struggle focusing on the government's third branch--the federal judiciary.

Mobilized by a determination to stamp out what they call "judicial activism," Senate Republicans last month vowed to keep anyone who fits under that hazy and controversial rubric from getting on the federal bench. To prove their point, they have been subjecting President Clinton's judicial nominees to painstaking scrutiny, resulting in lengthy delays on confirmation votes.

And in the House this week, GOP lawmakers are unveiling proposals for limiting judicial power and disciplining misbehaving judicial activists already on the court, including even the ultimate weapon of impeachment.

For their part, Democrats contend the GOP offensive threatens to undercut the president's constitutional authority to select federal judges and the independence of the federal judiciary. Vermont Sen. Patrick J. Leahy, ranking Democrat on the Judiciary Committee, on Wednesday accused Republicans of "court bashing" in a Senate speech.

Pointing to the nearly 100 vacancies among the roughly 800 posts on the federal bench, Leahy charged the GOP with creating a judicial "crisis."

At stake in this escalating struggle is the ideological thrust of the courts entering the 21st century. Clinton, who already has selected 202 judges, is expected to pick at least that many more. Ultimately, some of their rulings could have more enduring impact than anything accomplished by the White House or on Capitol Hill.

The conflict over the courts is another symptom of what political scientist Benjamin Ginsberg of Johns Hopkins University labels the era of "post-electoral politics." This finds both parties, unable to gain a governing majority at the polls, seeking to gain an advantage through such weapons as congressional investigations and nomination fights.

On the judicial front, Republicans have no trouble explaining what they are against. "A judicial activist is someone who makes the laws and usurps the power of the other two branches," said Sen. Orrin G. Hatch (R-Utah), Judiciary Committee chairman.

They complain about last year's decision by San Francisco-based federal Judge Thelton E. Henderson blocking the California initiative to end state affirmative action programs--a decision subsequently overruled--and a ruling by Texas federal Judge Fred Biery indefinitely postponing the swearing-in of GOP officeholders because of his finding that illegal absentee ballots were cast last fall.

To prevent such decisions, Republicans are giving Clinton's judicial nominees a rigorous going-over. "The people have a right to know whether we are going to confront another judge who may attempt to overturn another initiative that a majority of people voted for," Sen. Charles E. Grassley (R-Iowa) said recently.

And to clip the wings of over-active judges, House Judiciary Chairman Henry J. Hyde (R-Ill.) this week pressed legislation to require three-judge panels--rather than a single jurist--to hear constitutional challenges to state referendums and prohibit federal courts from imposing taxes to enforce decisions.

But what Republicans see as judicial activism, Democrats often defend as protection of constitutional rights. And in testimony Wednesday to a House Judiciary subcommittee, Rep. Melvin L. Watt (D-N.C.) noted that it's not just "liberal" rulings that can cause grievances about judges.

Judicial activism "is standing up in court as a lawyer and having the judge call you a nigger," Watt told the panel, an indignity he later said he endured "more than once" during his legal career.

And in the midst of their offensive, Republicans heard a cautionary admonition from one of their own. "I think it's time for conservatives to understand that their nominee for president did not win," Hatch said last week.

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