Week of September 22, 1996

by F.R. Duplantier

"A president's judicial legacy . . . will have an enormous impact on liberty and determine whether the unique system created by the founding fathers will survive."

"Because federal judges have the power to determine what the Constitution means, they have the power to trump what the people, acting through their elected representatives, wish to do," writes Thomas Jipping, director of the Judicial Selection Monitoring Project of the Free Congress Foundation. "In a system of self-government, under a written Constitution based on the rule of law, this is a potential threat to liberty," says Jipping. "Thus, the judges a president appoints will indeed be his most profound legacy, and that legacy will be marked by either judicial restraint or judicial activism."

In a new report called The Clinton Judicial Legacy, Jipping explains that judicial restraint "respects the political process. The restrained judge knows there is such a thing as 'the Constitution' with its meaning already established by its framers. He decides legal cases rather than political issues and applies the law no matter what the outcome." Judicial activism, on the other hand, "disrespects the political process. The activist judge believes he can give the Constitution or statutes any meaning he chooses; what matters is not 'the Constitution' but what the judge says about the Constitution. He decides cases politically, driven by outcomes. Only judicial restraint is consistent with the American scheme of self-government under a written Constitution based on the rule of law."

Jipping points out that there are currently 837 federal judges in America. Each one "serves for life, and each has the power of judicial review. The U.S. Court of Appeals is required to hear appeals from the U.S. District Court, as long as they meet procedural and jurisdictional requirements. The U.S. Supreme Court, on the other hand, has complete discretion to decide which appeals it will consider," and in recent years has decided fewer than two percent of such cases. "This means the lower courts have the last word in nearly every case in the federal court system."

Jipping reports that, by midsummer of this year, "the Senate had confirmed 189 Clinton judges; this total includes two Supreme Court Justices, 29 U.S. Court of Appeals Judges, and 158 U.S. District Court Judges." The court appointments in the next four years will shape the federal court system well into the next century.

"The only way to evaluate a president's judicial legacy is by examining the record, the actual decisions, of his appointees," says Thomas Jipping. "A review of actual decisions by Clinton judges reveals them to be aggressively activist." Even though President Clinton has publicly adopted moderate political positions on some issues from time to time, his activist judges have usually ruled the opposite way. The President's power to appoint federal judges is one of the most important factors to consider at election time, when America's future will be decided.

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