http://www.aim.org/guest_column_print/4606_0_6_0/



Judicial Nominations and a Scent of Needless Diversion
By Marion Edwyn Harrison, ESQ. | May 30, 2006
The point is that the parental remedy lies with their local school board and school administration, not the Federal Judiciary or any other place in the Federal Government.

As discussed in a recent column entitled "The Federal Judiciary - Unprecedented Near Crisis: Some Causes," the Federal Judiciary is approaching - some would say, is in the midst of - a crisis. Inadequate salary and an erratic disrespect for the Federal Judiciary are two causes. More directly the cause is the indefensible conduct of some Senators - of the leftist persuasion and/or appealing to that voter bloc - in delaying, insulting, harassing and otherwise demeaning nominees.

The most recent statistics are not encouraging. As of May 25, 11 nominations are pending to fill 19 vacant judgeships.

Judge Terrence W. Boyle first was nominated for elevation to the United States Court of Appeals for the 4th Circuit in May, 2001. His nomination has been on the Executive Calendar (meaning the Senate could act if it chose) since June of last year. The 4th Circuit is classified as a "Judicial Emergency," now aggravated with the unanticipated resignation of Judge J. Michael Luttig (who has accepted private employment paying several times his judicial salary). The William Myers and N. Randy Smith nominations, dating from May, 2003 and December of last year, for the 9th Circuit, also rated "Judicial Emergency," have been on the Executive Calendar since March of last year and this month, respectively. Brett M. Kavanaugh was nominated for the District of Columbia Circuit in July, 2003; only this month did the Judiciary Committee report (favorably) his nomination. Two more nominations, dating from September 2003 and February of this year, yet await a Judiciary Committee vote, both to Circuits with Judicial Emergencies (4th and 9th again). Five others are "in Committee" - meaning no hearing yet; one is for the 5th Circuit, another Judicial Emergency, and dates from February 8. The other four date from this month so, unless past practice were to become prologue, one cannot now complain about them. (None of these delays, incidentally, necessarily reflects upon the Judiciary Committee Chairman Arlen Specter [R-PA]. In view of the liberal cohort of relentless, rough and noisy colleagues, prudence sometimes compels slower action in committee.)

In fairness, one should note that United States District Court nominations are not treated so rudely and recklessly but there are 21 vacancies as to which President George W. Bush has not nominated. However, these delays, superficially inordinate, do not necessarily reflect White House fault inasmuch as too few qualified attorneys, academics and judges of lesser courts are willing to submit to the personal and professional assault, delay and diversion which a handful of liberal Senators may inflict upon them - all to accept a judgeship which as to many would reduce their income.

The foregoing aside for the moment, what is the scent of needless diversion to which the caption refers?

On November 17, 2005 the Court of Appeals for the 9th Circuit, through a customary three-judge panel, in an unpublished (but not inaccessible) three-paragraph Memorandum Order, affirmed a United States District Court decision which dismissed a case brought by some displeased parents. A local public-school teacher had conducted a class in which he dressed up children as Moslems and otherwise more or less lived out the Islamic Religion. The exercise supposedly was designed to educate the little people. (Apparently the teacher is not a Moslem although a Moslem may have financed the kiddos' clothing.) The decision recently attracted public attention.

This writer takes a very dim view of the program – and also might if it were of another religion. That's besides the point. The point is that the parental remedy lies with their local school board and school administration, not the Federal Judiciary or any other place in the Federal Government. The Court of Appeals correctly held that the program "did not violate the Establishment Clause of the First Amendment…" and also affirmed the dismissal upon two other grounds (the legal concepts of Defendants' qualified immunity and Plaintiffs' lack of standing.)

This litigation relates to the broader topic of Senatorial proceedings vis-à-vis the Federal Judiciary only in that at least one Senator appears to think there is, or ought to be, some role for the United States Senate. The role, of course, is to back off. There is no Federal issue. Further, all Senators, as this writer, should recognize that the Federal Judiciary already has gone overboard in extending the Establishment Clause to prohibit so many manifestations of faith inherent in our Colonial and national history. We all should be grateful that the 9th Circuit (generally rated the most "liberal" or activist of the Circuits) recognizes the realistic and limited scope of the Establishment Clause. Senators need to attend to their Constitutional "advice and consent" business. There is no wisdom in any more diversion, much less that in Eklund v Byron Union School District, the case at issue.