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Guest Commentary July 8, 2002
The Importance of Judges
The Honorable Jon Kyl
Federal courts made a lot of news in the past few weeks with rulings that significantly affect Arizonans and the American people as a whole.
Some of the highlights include:
* Parental Choice in Education: The most important decision issued by the U.S. Supreme Court in this term was Zelman v. Simmons-Harris. By rejecting the claim that providing vouchers to parents is unconstitutional even if parents might send their children to religious-affiliated schools, the Court cleared the way for new legislative initiatives to provide parents with more choices for their kids, such as tax-free scholarship programs already operating in Arizona.
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Arizona's Death Penalty: In a 7-2 decision, the Supreme Court overturned Arizona's death-penalty law. The Court ruled that the constitutional guarantee of a right to trial by jury also includes the right for a jury to decide death sentences. Arizona's law had permitted a judge alone to impose a death sentence.
Random Drug Testing: The Supreme Court upheld a Tecumseh, Oklahoma policy allowing local school officials to conduct random drug testing of students as a condition for participation in extracurricular activities. Students who failed the test twice or refused to take it could be banned from extracurricular activities for the rest of the school year.
Pledge of Allegiance: The most notorious decision in recent memory was the ruling by three judges on the Ninth Circuit Court of Appeals (whose jurisdiction includes Arizona) that recitation of the Pledge of Allegiance at public schools was a violation of the constitutional separation of church and state. After a public outcry, that ruling was stayed by that same court pending a rehearing.
Each of these decisions in its own way underscores the power judges wield on matters that affect all of us. In Arizona, for example, many of our state's efforts to experiment with more educational options for children have now received a major legal boost from the High Court. In regard to the death penalty, our state legislature must now rewrite its law in order to conform with the Court's ruling. And the legality of school anti-drug programs similar to Oklahoma's is no longer in doubt.
In addition to demonstrating federal judges' power, this flurry of major decisions also highlights their independence. In the Senate today, a number of President Bush's judicial nominees have been blocked by Democrats who claim they may be "too conservative" to apply the law impartially. Conveniently, they overlook the fact that Republicans voted for the vast majority of President Clinton's own judicial nominees, despite concerns about those nominees' "liberal" philosophies.
But as these rulings demonstrate, judges are not always easily pigeonholed by their presumed political affiliations. Two of the Supreme Court justices who dissented in the school-choice case, for example, were Republican appointees: David Souter and John Paul Stevens. Similarly, the 5-4 drug-testing decision gained the critical support of one Clinton appointee, Justice Stephen Breyer, and the opposition of another, Ruth Bader Ginsburg. The 7-2 majority overturning Arizona's death penalty included two justices nominated by Democrats and five nominated by Republicans. And, at the level directly below the Supreme Court, the Circuit Court opinion against the Pledge of Allegiance was co-authored by two judges, one appointed by Republican Richard Nixon and the other by Democrat Jimmy Carter.
In short, attempts to engineer a "nonpartisan" court are unnecessary. Presidents ought to be able to nominate judges they truly want, as long as a nominee's competence and honesty are not in question.
Many Senate Democrats (including Judiciary Committee Chairman Patrick Leahy) also block Bush judicial nominees in search, they claim, of some illusory "balance" on the federal courts.
Is the Ninth Circuit "balanced" when judicial activists rule against the constitutionality of the Pledge of Allegiance, in direct opposition to the expressed position of every single member of the United States Senate and the overwhelming majority of the American people? How do you cement a "balance" on issues such as school choice or drug testing where the majority -- even a narrow one -- is made of a constantly shifting combination of jurists? You can't.
As these rulings once again demonstrate, judges are independent and often unpredictable. The only people who provide "balance" are the voters, who pick Presidents from either of the two parties and entrust them with the power to appoint nominees to the courts. That's the way the Founders envisioned it. And that's the only way that works.
Jon Kyl, a Republican, is a U.S. Senator from Arizona. The above commentary has been adapted from a weekly column Sen. Kyl issues, July 5, 2002. To contact him, Click Here.
The above column has been distributed by PoliticsOL.com.
