Judging Jipping

Remember when conservatives believed blocking judicial nominees was a good thing?

By Terry Krepel
Posted 11/5/2001

Thomas L. Jipping of the Free Congress Foundation has been the ConWeb's point man in criticizing Senate Democrats for their relatively slow pace in approving President Bush's federal judicial nominees; WorldNetDaily, NewsMax, CNS and Accuracy in Media all run his commentaries on a regular basis. In particular, he has frequently (as he does in an Oct. 5 commentary) blamed Senate Judiciary Committee chairman Pat Leahy for the slowdown and pointed out that Democrats claimed that 60-plus judicial vacancies was a problem when Republicans controlled the nominating process, yet vacancies today are above 100 with the Democrats in control of the nominating process.

We're not going to argue about the hypocrisy there. We do, however, know that hypocrisy is a two-way street, and Jipping is just as guilty of it as the Senate Democrats are.

Jipping never had a problem with blocking judicial nominees when Bill Clinton was in office. In fact, there wasn't nearly enough of it as far as he was concerned. In an Oct. 6, 1999, commentary, Jipping lamented that Republican Orrin Hatch, then-chairman of the Senate Judiciary Committee, hadn't voted against a Clinton judicial nominee in five years and in that time "he has voted for an unbroken string of more than 200 Clinton judges."

During the 2000 election, Jipping wanted all judicial confirmations blocked, and a Sept. 27, 2000, commentary even gives 10 reasons why this should happen. One partisan reason is because "the Republican Senate should not let Clinton break Ronald Reagan’s appointment record"; another discounts the vacancy-crisis argument by dismissing the number then as "only 63." If the number of vacancies wasn't an issue then, why make it one now?

In an Oct. 17 press release, John Nowacki, Jipping's fellow traveler on the whole judge thing at the Free Congress Foundation, complains that some Bush judicial nominees have waited as long as "160 days" for action to be taken on their nomination. Nowacki has probably forgotten that some Clinton nominees waited as long as two years for a Republican-controlled Judiciary Committee, and I don't recall either him or Jipping bellyaching about that. Of course, it was OK then to block judicial nominees.

Jipping also complains about "judicial activism," which he would prefer be replaced with his own brand of judicial activism as promoted by the Federalist Society, the group whose philosophies conservatives love. As Simon Lazarus writes in a June 2 Washington Post commentary, the Federalist Society adherents would use the federal courts "to micromanage economic and social regulation, regardless of which party the electorate chooses to control Congress or the White House." Where is that in the Constitution?

Federalism is not the same as the "strict constructionist" view of the Constitution, Lazarus writes, and he quotes Supreme Court Justice Antonin Scalia, the conservatives' favorite justice, as saying "no one ought to be" a strict constructionist. Lazarus believes that everything from enviornmental standards to conservatives' desire for a ban on "partial-birth" abortion would not survive a purely federalist judiciary.

Jipping and Nowacki would have you believe that their Center for Law and Democracy, under which their Free Congress activities are grouped, is interested only in cultivating "fair, impartial judges without a political agenda," as a May 9 press release states. But that's only a very thin veneer, best demonstrated by what that press release is about: praising President Bush's initial round of judicial nominees; when was the last time Free Congress praised a Clinton judicial nominee? The agenda of Jipping, Nowacki and the Federalist Society is no less political than that of Democrats and so-called "judicial activists": to get more of their guys on the bench, or at least fewer of the other side. They shouldn't pretend it's not. (This agenda is illustrated even better by the Free Congress companion website JudicialSelection.org.)

If Jipping and Co. are going to accuse Democrats of playing politics with the judicial selection process, they need to admit that they are doing the exact same thing. Complaining about the hypocrisy of others while hiding your own, as the folks at Free Congress are doing, just makes one look silly.