Protecting the Judiciary: Curt Levey and the Committee for Justice
In May of 2001, President Bush nominated Miguel A. Estrada to the United States Court of Appeals for the D.C. Circuit. Mr. Estrada was born and raised in Honduras and came to the United States with his mother at the age of 17. He had limited knowledge of English, but worked his way through school, graduating from Columbia University and Harvard Law School. He was editor of the Harvard Law Review, served as a law clerk to Justice Anthony M. Kennedy in the U.S. Supreme Court and Judge Amalya L. Kearse in the U.S. Court of Appeals for the Second Circuit, in addition to working for the legendary New York law firm of Wachtell, Lipton, Rosen & Katz, and later serving as Assistant to the Solicitor General of the United States. Mr. Estrada had received glowing evaluations from his superiors while working at the Department of Justice and was considered by fellow attorneys to be a top appellate litigator. But Senate Democrats filibustered Mr. Estrada’s nomination, claiming he was too ideological. Mr. Estrada’s failed confirmation marked the first time that a filibuster had ever been used to defeat a nominee for a federal appellate court.
This sort of hyper partisanship has characterized many of the judicial nominations of recent years. Fortunately, there is one group in Washington devoted to ending the partisan divide over nominations to the federal judiciary. The Committee for Justice is a Washington-based legal think tank and special interest group committed to restoring the judiciary to its proper role –upholding the rule of law and the Constitution. Curt Levey, the executive director of the group, is passionate about preserving the Constitution and stopping activist judges from redefining it.
Mr. Levey was raised in New York and received his bachelor’s and master’s degrees in computer science from Brown University. He worked in the field of artificial intelligence for several years after. He distinguished himself in the artificial intelligence sector by writing a successful patent application for a new technology that he invented. After several years in this field, Mr. Levey attended Harvard Law School, from which he graduated with honors. Upon graduation, Mr. Levey clerked for the U.S. Court of Appeals, served as the director of legal and public affairs at the Center for Individual Rights, and later headed the Title IX policy group at the U.S. Department of Education’s Office for Civil Rights.
Mr. Levey, who will be speaking at Wabash College on April 23rd, has a special interest in civil rights. He currently serves on the executive committee of the Federalist Society’s civil rights practice group, and he is especially passionate about affirmative action. Recently, Mr. Levey authored a report questioning the constitutionality of law firms’ diversity initiatives. But Mr. Levey is most passionate about preserving the rule of law and ensuring that the judiciary contains solid constitutionalist judges.
There are currently more than 50 vacancies on the federal courts. Some of the most contentious battles of nominations are those to the Courts of Appeals and, of course, the Supreme Court. The battles are heated at the Court of Appeals level for a couple of reasons. First, there is always the possibility that judges on the Court of Appeals will later be tapped for places on the Supreme Court. Some senators might be hesitant to confirm an especially young and talented attorney (such as Mr. Estrada), for fear that his confirmation would provide a stepping stone to the highest court in the land. Secondly, appellate court judges do hold a high position, and have the ability, with their colleagues, to reverse decisions made by the lower district courts. With this, appellate court judges receive much higher scrutiny during their nominations.
Since the Carter Administration, the average number of days that it takes the Senate to deliberate on judicial nominees has dramatically increased. According to the Committee for Justice, nominees who were confirmed by the Senate during the President Carter’s tenure took an average of 69 days, while those who went unconfirmed averaged 195 days. During the Bush administration, these numbers had risen to 348 days for confirmed nominees and an astounding 906 days for unconfirmed nominees. This obstructionism is unfortunate. But perhaps even more unfortunate is the ways that the Democrats proceeded to oppose President Bush’s nominations, specifically their use of the filibuster.
The use of the filibuster for nominations to the Court of Appeals was unprecedented, until Senate Democrats did so against Miguel Estrada. Republicans at the time were a majority in the Senate. Through the use of the filibuster, however, a 60-vote supermajority was required in order to invoke cloture and thus stop the filibuster. The Republicans did not have this many votes, and several months after the failed cloture Mr. Estrada unfortunately withdrew his nomination.
In the wake of the failed Estrada nomination the Committee for Justice has worked to advance its goals by networking with lawyers throughout Washington and those who hold power on the Senate Judiciary Committee. It has also pushed its message through the grassroots, with television, print, and radio advertisements. In the past, the Committee has used these ads during the confirmation hearings of Mr. Estrada, Judge Janice Rogers Brown, Judge William H. Pryor Jr., and then Judge John G. Roberts Jr.
Many of these judges were considered extremely conservative members of the far right wing. But in reality, these nominees were simply constitutionalists. The Committee for Justice defines constitutionalism as “the belief that a judge’s proper role is as neutral interpreter of established law, not as pioneer of new law or social policy through judicial activism.” The judicial branch is not and should not be a political branch of government. Activist judges have radically different views on this, though, and they seek to create new rights that advance their ideology.
In an article in the August 2008 issue of Town Hall, Mr. Levey, the Committee for Justice executive director, gives several examples that judicial activism commonly takes. These include construing black as white, twisting doctrines beyond recognition, inventing new rights, ignoring old rights, and playing policymaker. Mr. Levey writes that the dangers of judicial activism include unrestrained power of the judiciary, its very undemocratic nature, a fostering of elitist values, reliance on international law, the withering of the amendment process, the distortion of the political process, the circus it creates in the Senate, and the damage it does to regular American citizens. Judicial activism is certainly not something to be taken lightly. It is a serious erosion of our constitutional rights, and it is important that judges know and understand this.
Judicial activism is not solely a practice of liberal judges. Conservative judges, including Justice Antonin Scalia, a staunch critic of judicial activism, have been accused of writing opinions that stretch the Constitution to advance their goals. But the political views of the judges are moot; conservative and liberal judicial activism is wrong. It undermines principles and precedents that have worked for hundreds of years while also politicizing the judicial branch.
Groups pushing for constitutionalist judges are greatly outnumbered by those on the left, such as the Alliance for Justice and People for the American Way. The Alliance for Justice is currently celebrating its thirtieth anniversary. The Committee for Justice, on the other hand, was only formed in 2002 and has a limited staff. There are signs, however, that conservatives are uniting to present a solidified front on the issue of judges, with groups such as the Committee for Justice and Judicial Confirmation Network, working with attorneys affiliated with the Federalist Society for Law and Public Policy, to ensure a constitutionalist judiciary.
With the Democrats controlling the White House and Congress, it becomes increasingly important that checks and balances remain on these branches. These checks and balances can come in the form of public opinion and elections. But they can also come from the judicial branch, specifically from constitutionalist judges. As activist judges continue to create new rights that undermine the original meaning of the Constitution, the American people will come to understand the importance of quality, neutral judges who respect the rule of law and uphold our great Constitution. It is an issue that will unite conservatives and benefit all Americans.
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