Sneakily Appointing Judges On President’s Day
Dishonors Both The System And Former Executives

By William Finucane

Another Presidents’ Day has now come and gone, a day designed for Americans to take a little time off, and hopefully think of the glory and hard work of two of their greatest leaders, George Washington and Abraham Lincoln.

Even the women and men of the Congress suspend sessions and honor the past heroes. But while they were out of session this year, the current president used the time set aside for remembering and praising the great American presidents to slip another judge into office.

As president, George W. Bush has this power. When the Congress is out of session, the president can order a judge appointed without confirmation hearings. So he did so, bypassing the troublesome Senate hearings where questions about a candidate’s personal ideology and prejudices are aired on the behalf of the American public, a process designed by the Founding Fathers to protect the citizenry from judges who might be prone to using the law to further an agenda rather than as a means of finding justice.

If Mr. Bush recalled Washington and Lincoln at all during President’s Day, he must have toasted them for the irony of a holiday in honor of past presidents that gave him this opportunity to further pack the court system. Imagine that, he may have thought, Lincoln and Washington giving me the chance to force another conservative onto the bench. Then again, the irony may have escaped him altogether.

This instance of cynical political maneuvering was, obviously, just another of those "sneak around a holiday and miss the frothing Democrats at the Senate hearings," a process that Mr. Bush has used in the past. Maybe this is becoming a habit.

Installed in the latest sneak-through appointment was William Pryor.

Mr. Pryor was elevated to the United States Court of Appeals for the 11th Circuit in Atlanta, Georgia. Democrats opposed Pryor because he’s publicly criticized the landmark Supreme Court abortion ruling, and it is naturally assumed that he will enter any debate about abortion with a predetermined point-of-view.

His impressive record demonstrates his devotion to the rule of law," said Mr. Bush.

There are, however, some examples of that devotion that have been provided by Mr. Pryor himself. In a Texas court, he filed a brief against allowing gay marriages. If the law were to be overturned and gay men and women are able to marry, Pryor pronounced, it would pave the way for "prostitution, adultery, necrophilia, bestiality, possession of child pornography and even incest or pedophilia."

This rhetoric does not belong in court. Maybe a few churches would like to hear such blood stirring preaching. But this does not belong in court, and certainly it provides a clear idea of what to expect from Mr. Pryor as a judge.

But this was not the first example of slippery court packing by the current president. Earlier, Mr. Bush used the holiday scheme to appoint another reactionary conservative to the bench. Mississippi Judge Charles Pickering was elevated from a local jurisdiction to the United States Court of Appeals for the Fifth Circuit in New Orleans.

Equally impressive was his record.

Actually, George Bush chose a separate holiday for this appointment, perhaps out of a sense of fair play. Or maybe out of cynical reality. Presidents’ Day, what with it’s remembrance of Lincoln and his special relation with America’s black citizens and all, would have been awkward to use for this appointment.

Pickering was the judge in a cross burning case.

Judge Pickering made it a point to single out one defendant and reduce his sentence. He made a special case on the behalf of this defendant. It’s probably safe to assume that Lincoln, were he alive today, would rather not be connected with this judicial appointment, and would have thought little of the way it was brought about.

Both judges now sit,  in their lofty positions, without ever having had to pass the Senate, thereby thwarting the intent of the Constitution. But just to tweak the process a bit more, the Bush camp has actually thrown a boomerang maneuver into the federal judicial process. It is nearly a perfect illustration of the Bush style, too.

Bush and his followers put out a directive a month or two ago through the justice department that was clearly aimed at what they consider to be liberal or left-wing judges. The new order essentially asserts that all judges should be watched closely for signs of independent thinking, especially when employing judicial discretion in sentencing. Overlooking such contradictions as Judge Pickering’s reduction of the cross burner’s sentence, the Bush people have made it clear that they want to see judges enforce maximum sentences against those convicted of virtually any crime.

If a judge anywhere should give an especially light sentence, then he or she should go on report to the Congress, which presumably would move against the offending jurist.

 According to the Bush Administration, judges have no right to be give out light sentences, no matter what the circumstances, excluding of course situations involving cross burning and the like.

Even Chief Justice William Rehnquist called this the wrong medicine for judges. He is very much a conservative. But he could see that putting judicial branch decisions under the regulation of the legislature was muddling Constitutional mechanics. There are supposed to be three separate and to some extent adversarial branches of government: executive, legislative and judicial. So far, the concept has worked.

Mr. Bush, however, wanting to build-up his particular executive branch to much greater strength, seems clearly to be trying to reign in the judiciary.

Absolutely no more light sentences for criminals. None, Bush demands. Well, as noted, maybe there are some exceptions. Like cross burning.

With that particular crime the administration apparently sees what it likes in a light sentence, so it was no impediment to appointing Pickering to a higher judgeship. It’s all a simple matter of knowing which specific laws Mr. Bush wants enforced, and what crimes should be punished. It appears that the Bush Administration has confidence in Judge Pickering’s ability to distinguish one from the other, so it was apparently easy to appoint him as one of Mr. Bush’s holiday gifts. No trouble, no questions from Congress, just pick a holiday, we will run you through quick as can be.

So Mr. Pickering misses the call before Congress altogether.

But the Founding Fathers, and great presidents like Washington and Lincoln, all knew that this nation is supposed to be run according to the law itself, not the individual wishes of even a popular president, much less the wishes of a divisive executive who cannot even lay honest claim to having won election to the highest position in the land in the first place.