April 26, 2001
The Bush administration has taken
some long-overdue action to limit the influence of the American Bar
Association in the selection of federal judges. Ending a policy that dates
back to the confirmation battles in the Nixon administration, the Bush
administration has announced that the ABA will no longer receive advance
word about the people being considered by the White House and the Justice
Department for nomination to the federal judiciary (including the Supreme
Court, the District Courts, and the Circuit Courts of Appeal, along with
some specialized courts). That is a very good thing, for which the
administration deserves a great deal of credit. However, there just might
be a hidden motive in this move.
Conservatives have railed long and
rightly against the ABA’s leftist and legally positivistic leanings.
The leadership of the ABA has been in the vanguard against genuine tort
reform in this country, lobbying against legislation at the state and
national levels that has sought to place curbs on lawsuits. In addition to a
capitalistic, for-profit view of patients and a utilitarian view of human
existence that rejects the concept of redemptive suffering, one big reason
for the American health-care fiasco is the number of medical malpractice
lawsuits filed each year.
Surely, some of those lawsuits are
justified. A world that does not live in the shadow of the Holy Cross
descends into sloth in all fields, including medicine. A surgeon in upstate
New York recently operated on the wrong knee of a patient. It was the
second time he had made such a major mistake. He did not see that the
correct knee had been painted with the word “Yes” in red.
That is nothing but sloth, caused by a failure to take seriously one’s
work as a means of giving honor and glory to God.
That having been noted, many medical
malpractice lawsuits are frivolous, driving up the costs of malpractice
insurance to the point where some physicians have left their chosen field
altogether. Indeed, one of the reasons my father gave up his private
veterinary practice in 1972 was that he foresaw the day when even
veterinarians would have to purchase malpractice insurance. He had never
been sued for malpractice, but he knew the day was coming when lawyers
would prod clients to sue vets whenever something went wrong during
surgery on an animal. In 1967, one of our own beagles died on my
father’s operating table when she developed a breathing problem
unrelated to the anesthesia. Today, a customer who owned a dog that died
during surgery would be encouraged by attorneys to sue for “pain
and suffering” caused by the dog’s death. Complete and utter
nonsense.
The American Bar Association has
resisted quite mightily all efforts aimed at limiting the many
opportunities lawyers have to make money from the tragedies and
accidents of life. It has fed the belief that some individual or corporation
must be to blame whenever something goes wrong in the course of daily
living. It has also been in the vanguard of pushing for a
loose-constructionist interpretation of the U.S. Constitution, on occasion going
so far as to express support for certain decisions of the U.S. Supreme
Court, including the court’s decision in Roe v. Wade.
(That support has engendered a good deal of debate within the ABA at
some of its annual meetings.)
Although the ABA rated Judge Robert
Bork, a former U.S. Solicitor General and Yale Law School professor,
“well qualified” to serve on the Supreme Court in 1987, some
members of the ABA’s rating panel questioned Bork’s
“judicial temperament.” According to a number of
commentators who deciphered that, it meant only that Bork had long been
on record as believing that the court decided wrongly in Roe v.
Wade and that the decision could not be constitutionally justified.
In other words, the ABA has had an ideological axe to grind in its
reviewing of possible nominees for the federal judiciary. The Bush
administration has done the judicial-selection process a service by
preventing what is essentially a lobbying organization for the legal status
quo from having a say in the nomination of men and women to serve on the
federal bench.
But as I have indicated in recent
columns, that does not mean that the Bush administration is going to
appoint the right sort of people to the federal judiciary. Attorney General
John Ashcroft has said that he would not oppose pro-aborts Ronnie White
and Roger Gregory if President Bush nominated them to seats on the
federal bench. We can expect an assortment of nominees of the kind that
we usually get from a Republican administration. Some of the nominees
will be quite good; others will be very bad. Which brings us to the matter
of White House Counsel Alberto Gonzales.
Gonzales, not Ashcroft, was the
official chosen by the administration to announce its new policy on the
ABA. That is very significant. As I have written previously, Al Gonzales is
being groomed for one of the next vacancies on the Supreme Court. By
having Gonzales take the lead on the ABA announcement, President Bush is
attempting to burnish Gonzales’s credentials with conservatives
and strict constructionists. They are not supposed to remember (or care)
that Gonzales, as a member of the Texas Supreme Court, voted to strike
down a mere parental-notification bill that had been passed by the state
legislature and signed into law by his own mentor, then-Governor George
W. Bush. Bush is being very, very shrewd in giving Gonzales time in the
Washington limelight — and shrewd also by including him in some of
the weekly White House meetings between Bush staffers and leaders of
various conservative organizations.
Preliminary figures from the 2000
Census indicate that Spanish-speaking Americans have now eclipsed
blacks as the single largest minority group. Bush, who was popular with
the Latino population in Texas, wants to burnish his credentials with
Latinos nationally. The best way to do that is to nominate Gonzales to
serve on the high court. And the best way to help grease the skids, so to
speak, for Gonzales’s confirmation is to have him ingratiate
himself with conservative members of Congress and the leaders of various
conservative organizations. It will pave the way for the confirmation of a
man who has proven that he is not a friend of the innocent unborn. Very,
very clever.
Beyond the matter of
Gonzales’s possible promotion to the Supreme Court, there is
another possible hidden motive in ending the ABA’s involvement in
the screening of judicial candidates. The mere fact that a target of
conservative ire has been embarrassed so publicly will give the
administration cover to nominate almost anyone, including out-and-out
pro-aborts: Can’t we just relax now and trust an administration
that has kicked dirt in the face of the American Bar Association? No, we
cannot, especially when the president himself has said that he has no
litmus test for judicial nominees. As he proved when governor of Texas,
George W. Bush means exactly what he says. Proof of that is to be found in
Al Gonzales and Martha Hill Jamison, whose membership in and active
support of Planned Parenthood was no impediment to her being appointed
by Bush to a judicial vacancy on a district court in Houston.
As I have noted in my newsletter,
Christ or Chaos (and in Chapter Eight of Christ in the
Voting Booth), American judicial interpretation lives and dies on
the quicksand of the flawed nature of the American founding. A
constitution that admits in its own text of no authority higher than itself
becomes subject to the vagaries of those who interpret and apply it.
Federal judges sometimes make the right decisions. Most often, however,
they do not. A system of government that does not accept the Social
Kingship of Jesus Christ and the authority of His true Church degenerates
into tyranny over the course of time, including the tyranny of the majority
in society and the tyranny of those who serve for lifetime appointments
as judges. Constitutional interpretation becomes haphazard and
inconsistent, with judges making things up as they go along.
The only antidote to the poisons of
judicial activism and the legal positivism it engenders is to be found in
the right ordering of a society to the binding precepts of the Divine
positive law and the natural law as those precepts are taught by the true
Church, which is the only divinely-founded body with the authority to
teach in the Name of Truth Himself. For while it is nice that the American
Bar Association has been stripped of its pre-selection involvement in
judicial screening, what we need to pray and work for is the recognition
of the primacy of Christ the King and Mary our Queen.
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