Cal Thomas
Los Angeles Times Syndicate
February 25, 1997


The president told us the era of big government is over. Did he really mean it?
He seems to be doing what he can clandestinely to make sure that big government
not only survives but extends its reach. And there can be no debate about his
administration's position in favor of a federal judiciary with dictatorial
powers that undermine the Constitution and the will of the majority.

Based on the philosophy of judges he named and the Senate confirmed with
virtually no opposition in his first term, and the ones nominated but not yet
confirmed, President Clinton stands for a liberal interpretation of the
Constitution. He wants to use the courts to advance an agenda that would never
make it through Congress. The Senate must closely examine the nominees and not
give them a free pass.

The Judicial Selection Monitoring Project, part of the Free Congress
Foundation's Center for Law and Democracy, has profiled several current and past
Clinton nominees. It also criticizes the Senate, which failed to defeat a single
nominee, taking just four roll call votes and approving 198 candidates by
``unanimous consent.''

Approximately 90 vacancies currently exist, and more than 170 federal judges
will become eligible to retire in the next four years. This president may
appoint more judges than any of his predecessors, and he could pick nearly 60
percent of all activist judges.

Consider William Fletcher, nominated by the president to the U.S. Court of
Appeals, 9th Circuit. Fletcher has taught law at Berkeley since 1977, but has
neither judicial nor courtroom experience of any kind. Fletcher and Clinton were
classmates and Rhodes Scholars at Oxford. He was co-director for Northern
California of the Clinton-Gore campaign in 1992 and came to Clinton's defense
when his marijuana smoking became public.

Federal law prohibits appointing someone to ``any office'' in ``any court'' who
is closely related to a ``judge of such court.'' Fletcher's mother, Betty B.
Fletcher, has been a judge on the U.S. Court of Appeals for the 9th Circuit
since 1979.

Fletcher's academic writings, notes the judicial project, reveal a sweeping
vision of judicial power that would permit unelected judges to accomplish policy
goals and reject traditional restraints on judicial review. He believes judges
should be able to use so-called ``discretionary power'' to achieve desired
policy goals, even when the political branches have declined to do so. And he
thinks judges can declare legislatures in ``default'' and substitute ``judicial
discretion'' for ``political discretion'' to achieve those results. His own
examples show that, by taking this approach, judges could restructure the
political process, operate school systems, micromanage prisons and even run
mental hospitals.

Fletcher also rejects substantive and procedural limits on judicial power,
though the separation of powers may be the most important substantive restraint
on the power of government established in the Constitution by its framers.
M. Margaret McKeown is another Clinton nominee to the 9th Circuit Court of
Appeals. McKeown has taken a leading role in homosexual rights litigation. In
1994, a proposed ballot initiative would have allowed the citizens of Washington
to decide whether to grant special legal status to homosexuals. McKeown,
representing the ACLU, filed suit to keep the initiative off the ballot. In the
complaint bearing her signature, McKeown argued that the initiative would
prevent schools from teaching that homosexuality is a ``normal sexual
orientation.''

And so it goes for numerous other Clinton nominees, past and present.
In a Nov. 15, 1996, speech to the Federalist Society, Senate Judiciary Committee
Chairman Orrin Hatch (R-Utah) pledged that ``those nominees who are or will be
judicial activists should not be nominated by the president or confirmed by the
Senate, and I personally will do my best to see to it that they are not.''
Sen. Hatch waved through the Clinton nominees in his first term. He should live
up to his pledge to block any activist judge who does not read the Constitution
as written. Otherwise the Clinton legacy of bigger government will last much
longer than his presidency.