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No Justice, No Paez

The LAT and 'judicial activism.'


Posted Saturday, March 11, 2000

        Last Thursday, the U.S. Senate confirmed Richard Paez, a federal district court judge, for a promotion to the Ninth Circuit Court of Appeals. Last Friday's Los Angeles Times plays this event as a long-overdue ethnic triumph in the face of Republican obstructionism.

        Under the headlines "Wait Is Over as Paez Wins Judicial Post" and "Paez Is Finally Confirmed," reporter Richard Simon tells us in his first sentence that Paez had won "after enduring a record 1,506-day wait." In the second paragraph we learn that Vice President Gore suspended his presidential campaign so he could be ready to cast the deciding vote in favor of Paez. In the third paragraph we're told 14 Republicans "broke with Senate Majority Leader Trent Lott (R.-Miss.)" to confirm Paez. In the fourth praragraph Gore is quoted, in Spanish, saying "'Amigos, hoy finalmente hemos logrado justicia.' ('Friends, today we've finally achieved justice.')" The fifth graf begins

Paez, the first Mexican American to sit on the U.S. District Court in Los Angeles, waited longer for a vote than any judicial nominee in U.S. history. As a result, he had become the prime exhibit for Democratic accusations that the Senate GOP majority was subjecting minority and female judicial appointees to unfair scrutiny.
Only much further down in the story, long after it has jumped to the innards of the paper--and after we've been told that the GOP opposition to Paez might be used against presidential candidate George Bush--does Simon give any hint that Republicans might have actually had a reason for opposing Paez other than his ethnicity, namely that he was a "judicial activist."

        The evidence to back up this complaint wasn't overwhelming, but even the Washington Post editorial page, which ultimately supported Paez, admitted it was "not entirely frivolous." Paez a) had given a speech criticizing the initiative that later ended racial preferences in California, calling it "the proposed anti-civil rights initiative" and strongly hinting--since judges exist in part to enforce civil rights--that he'd strike it down; b) had explained his sense of the appropriate judicial role by saying, "I appreciate ... the need of the courts to act, when they must, when the issue results from the failure of the political process to resolve a certain question"; and c) had struck down as a violation of free speech a Los Angeles ordinance against aggressive panhandling. Everyone concedes that Paez is one of the more liberal judges nominated by Clinton (who has generally favored "moderates"), and that the Ninth Circuit, where he will serve, is one of the most liberal circuits.

        Is Paez too liberal? On the basis of the skimpy evidence offered during the public debate, it seems a close question to me. Item b) is alarming, though, since what liberals call "a failure of the political process to resolve a certain question" is often just a failure to enact a certain reform liberals think is needed.

        The point is that reasonable people can differ on the issue. And the enduring lesson of the Bork hearings is that, in the constitutional process of "advise and consent," it's perfectly proper for duly elected Senators to refuse to vote for a technically "qualified" nominee whose views they just don't like. Bork was "qualified," but Democrats were within their rights to oppose him. Paez is undoubtedly "qualified" (a point Gore emphasized last week), but, as the Post conceded, Republicans could easily conclude in good faith that Paez would be "a liberal activist on the bench."

        It was this good faith that the Times didn't credit in its presentation of the Paez story. Why didn't it? The two candidates are a) mindless liberal bias (try to imagine an L.A. Times headline "Bork Is Finally Confirmed") or b) ethnic pandering--since the Times is always campaigning for more Latino readers. As historians like to say, it's overdetermined.

        P.S.: The real secret of Paez's confirmation, it turns out, is not that he's a Mexican-American, but that he's a Mormon. His mother, who lives in Utah, waged a lobbying campaign on his behalf with Utah's two Senators, one of whom is Orrin Hatch, chair of the Judiciary committee. Hatch says he decided Paez was OK after Paez pledged (to Hatch) that "he will abide by the rule of law and not engage in judicial activism." Oh, well all right then! That was easy! (But did he really, really, really promise, cross his heart and hope to die?)

        P.P.S.: Also note that Paez's "record 1,506-day wait" wasn't exactly unendurable. He wasn't a lawyer who had closed up his practice in expectation of his ascension to the bench (as some other, never-confirmed, Clinton nominees have done). He was a federal trial-court judge, who presumably just kept working while waiting for his promotion to go through. The Senate let his nomination expire twice. Clinton ignored the hint and renominated him each time.

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