Senate approves liberal judges for leftist Ninth Circuit

On March 9, by a vote of 64 to 34, the Senate confirmed President Bill Clinton's nominee, Marsha L. Berzon, to serve on the 9th US. Circuit Court of Appeals. This circuit, the nation's largest, is based in San Francisco and covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana islands.

Conservatives opposed Berzon and fellow nominee, Judge Richard Paez, who was also approved the same day (see rollcall below) because of their liberal activist records, but were equally worried about the effect of adding two more liberals to the already left-leaning 9th Circuit (Clinton sent Paez's nomination to the Senate in 1996, but his prospects for a vote were dim until Senate Majority Leader Trent Lott struck a deal with Minority Leader Tom Daschle last year to bring the nominees to a vote this March.)

The 9th Circuit is widely considered to be the worst and most dysfunctional circuit in the country. The Supreme Court finds fault with and overturns a far higher percentage of the 9th Circuit's decisions than those of any other circuit. Conservatives said that confirming two liberal activist judges would only make an already bad situation worse, and that much harder to correct.

Sen. Jeff Sessions (R.-Ala.) said, "As a federal prosecutor who spent 15 years full time in federal court, I can assure my colleagues there is no circuit in America that is looked on with less respect on questions of law enforcement than the 9th Circuit. It is the furthest left circuit in the American judiciary, and there is no doubt about it."

Under a President like Clinton liberal judges are inevitable, he said, "But the question for these nominees is: Will they remain disciplined and honor the law? Do they have a history and tendency to impose their will under the guise of interpreting the law? This is a fundamental question we have to answer."

Liberals and moderate Republicans discounted objections to the nominees.

"There have been objections raised to Ms. Berzon on Ideological grounds," said Sen. Arlen Specter (R.-Pa.). "it is my view that this kind of a challenge ought not to be a basis for defeating a nomination to the federal court. She has opposed as a personal matter the death penalty, as many nominees do on a personal level, but has stated her willingness to follow the law in imposing the death penalty." Specter said Paez didn't disqualify himself by speaking out against California Initiatives 187, denying benefits to illegal aliens, and 209 restricting state affirmative action.

Conservatives were deeply disappointed that Judiciary Committee Chairman Orrin Hatch (R.-Utah) reversed his earlier pledge to oppose liberal activist judges, voting the two nominees out of his committee and supporting them on the Senate floor. At one time he had seemed to draw a line in the sand opposing judicial activism.

"I am serving notice around here that we are not going to continue to sit back and tolerate these activist judges ...... Hatch said In 1997. "We are going to do what it takes to weed out these nominees who pay lip service to judicial restraint, but then think they can do anything they want to once they don their robes.... I am serving notice that we do not intend to allow this rising tide of judicial activism to continue. The integrity of our judiciary, and our very right to self-government is at stake,"

Last July, Hatch reneged on his earlier tough talk and said he would support Paez, even though he worried that the judge would be an activist. I admit that I have had doubts as to Judge Paez's willingness to abide by the appropriate limitations on federal judges, but the nominee has given me his word that he will abide by the rule of law and not engage in judicial activism. For these reasons, I am not willing to stand in the way of this nominee's confirmation," said Hatch.

Liberals were pleased that the nominees had come up for a vote. "At long last the Senate is considering the nominations.... They are 'both exceptional nominees who have waited far too long for action by the Senate. Indeed, the delay in reviewing these nominations is a case study in the failure of the Senate to deal effectively with judicial nominations," said Sen. Ted Kennedy (D.-Mass.)

I can assure my colleagues that I have researched both these judges very carefully," said Sen. Bob Smith (R.-N.H.). I have looked at the 9th Circuit very carefully, and I have grave concerns about two very controversial judges being placed on a very controversial circuit court, the 9th. This is a renegade circuit court that is out of the mainstream of American jurisprudence...

I hope the American people... understand that when you hear these terrible stories about prisoners getting out after five years, or people committing terrible crimes and never going to jail or getting pardoned or getting lenient sentences, this is not an accident This happens because of the people we put on the court."

A "yes" vote was a vote to confirm President Clinton's nomination of Marsha Berzon to be a federal judge on the 9th U.S. Circuit Court of Appeals. A "no" vote was a vote against confirming Berzon.