Notable Quote

"What the worry is about the U.S. Supreme Court is that when these senior justices retire, like Chief Justice Rehnquist, that if they get replaced by liberals, that the court will then begin to legislate from the bench, as it were. That is the fear. The court as it is made up now is okay, but should not go off to the Left where I think the liberals would like to see it go."

-- Boyden Gray
Legal Expert

LEGAL ARENA

Stemming the Tide of Judicial Activism

November 12, 2004

CBN.com – Despite the Republican victories in the election, the battle over President Bush's judicial nominees is far from over in the Senate. Republican leadership in the Senate is thinking about changing the rules on how filibusters are conducted in the senate. And democrats may fight back as hard as they can.

Lawyer and legal advocate Boyden Gray is one of the nation’s most accomplished attorneys, and a leading legal scholar on a variety of law and economics issues. Pat Robertson spoke with Gray recently on The 700 Club to examine the issues that President Bush will face in coming days as he formulates his plan for the Supreme Court.

PAT ROBERTSON: With us from Washington is Boyden Gray. He is the chairman of the Committee for Justice, and he is the former White House counsel for the first President Bush. It is a pleasure to welcome you back to the 700 Club.

BOYDEN GRAY: Nice to be here, Pat, and nice to see you.

ROBERTSON: It looks like the evangelicals and pro-family Catholics put moral values on the top of the list, and the moral values had to do with what the court has been doing. What are some of the egregious things you’ve seen that this court has imposed on the population?

GRAY: The question of judicial activism goes back some years. The U.S. Supreme Court now, as it is now made up, has not been especially bad on this front. The Massachusetts Supreme Court really is the one that provoked the big debate for the campaign, which led to the same-sex marriage initiatives on the ballot in several states. In some ways you could say that court helped Bush to get elected. What the worry is about the U.S. Supreme Court is that when these senior justices retire, like Chief Justice Rehnquist, that if they get replaced by liberals, that the court will then begin to legislate from the bench, as it were. That is the fear. The court as it is made up now is okay, but should not go off to the Left where I think the liberals would like to see it go.

ROBERTSON: You have four pretty much to the Left there. Two are sort of in the middle, and three conservatives -- and one of the conservatives has cancer in his thyroid. If he gets replaced with another conservative, it doesn't change the balance.

GRAY: That is correct. The liberals shouldn't be concerned about his retirement. You know there is going to be a fight. The Democrats and liberals have lost now, for the first time in a century -- the White House, the Senate and House of Representatives. And the only thing left for activism, for the creation of new rights, is not the legislation, but the court. So that is where the battleground will be. We'll have to be very, very careful not to let them hijack the process.

ROBERTSON: They hijacked it before with these filibusters, which, in my opinion, was a distortion of the United States Constitution. I have talked to Senator [Bill] Frist (R-TN) about the possibility of changing the filibuster rules. It can be done as soon as they open the new session. What do you think about instead of having 60 votes for cloture, bringing it down to 50 or 51?

GRAY: The idea would be to do this, make the change for the so-called executive calendar. That is the nominees. Nominations would not affect ordinary legislation, where the filibuster has been employed anyway. The idea of filibustering a judge is brand new – it only started a year ago. So I think that putting the clock back to where it was 220 years is a smart thing to do. One thing, Pat, which I think ought to be made clear here, is the results of a study by a liberal professor, the leading advisor to the Democrats over judicial nominations, a man named Cass Sunstein. I happen to respect him and admire him. He’s a professor at the University of Chicago Law School. He’s done a study, going back about 50 years, about the type of judges nominated by both parties. What he found is, while the judges of Republicans of the last few years, 25 years, are to the right of where they were for Nixon and Ford, the remarkable thing is, he found that President Bush’s nominees are exactly the same as his father’s and as Reagan. So this current president is not doing anything that Republicans haven't been doing for 25 years. When the Democrats start to filibuster, they are the ones going off of the tracks to the Left. It is not President Bush. He is in the mainstream for 25 years, and we ought to allow him to continue to nominate those judges and have them get up or down votes in the Senate.

ROBERTSON: Do you think that the Republicans have the stomach or intestinal fortitude to get this thing done? It would only take a simple majority to pass a change in the rules.

GRAY: I hope they have the guts to do it. If they don't, they will be taken to the cleaners on every issue for the next four, and years beyond. I think the Democrats have threatened to walk out. There are some of us who say, be our guest, please walk out. When the Senate had only a 51-vote majority, to keep a quorum is difficult. You have to have everybody in good health, and on the ground, there all of the time. But with a 55-vote cushion, you have a four- or five-vote cushion. The walkout by the Democrat is no longer a real threat. They should do it.

ROBERTSON: What if you are a betting man, what are the odds?

GRAY: I think the odds are better than 50-50 that they will do it.

ROBERTSON: One last question. The talk about Clarence Thomas going in as chief justice? Is that a real possibility or is that somebody’s speculation?

GRAY: I think it could be a trial balloon. But it would be, I think, a bold move and a good idea. He needs and deserves the honor that goes with it. Whether that will happen, I don't know. I am told he doesn't want to go through what he went through before. He has a new son. He may be averse to putting his family through this, as anybody would be averse. Anybody who goes up for nomination goes through hell. He may not want to do it. If the president asked him, he probably would say yes.

ROBERTSON: Thank you. Boyden Gray, the White House counsel under the first Bush president, and leading the fight for judicial reform. We appreciate his activism on this issue.

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