A Torturous Test for Bush’s Judge Picks


Besides tax-code revision, the appointment of judges is probably the most obscure, elite, yet hugely impactful process that unfolds in the hallowed halls of federal government. The ordinary person could not be farther removed from an official decision that may drastically affect his or her daily life. Or drastically affect the life of some other poor soul.

In a Newsday op-ed this week, American University law professor Herman Schwartz connects the dots that lead from the Bush administration torture memos to the president’s current or future judicial picks. Those memos, crafted after Defense and Justice Department lawyers returned from prospecting along the outer edges of human decency and international anti-torture agreements, directed U.S. captors’ controversially harsh treatment of detainees in the current wars.

For instance, Schwartz points out that Jay Bybee, as a senior Justice Department lawyer, wrote the controversial August 2002 memo—since repudiated by the administration—that parsed the law on torture to forbid only those acts leading to physical damage “such as organ failure.” President Bush appointed Bybee to the Ninth Circuit Court of Appeals a year later.

Conservatives have cried foul over political opposition to Bush’s judicial nominees—although they are happy to smear the “activist judge” epithet all over anyone in a robe interested in vindicating gay equality, due process at criminal sentencing, or a woman’s right to choose.

But considering politics at the judicial nomination stage or earlier is not only OK, but a crucial last chance. Once confirmed, the federal judge is a politically insulated actor for life, and with good reason. No one wants judges interpreting laws, or especially the Constitution, based on poll numbers or pundits, since the right thing to do is sometimes extremely unpopular (take the desegregation of public schools in the Deep South).

Merely because a judge came in as a conservative fave doesn’t mean that he or she will always be a party faithful, although it doesn’t mean that he or she won’t. But just as the president and Senate appoint judges without any guarantees, only a good sense of what they will do once on the bench, so the voters pick presidents.

The next president will probably nominate at least two Supreme Court justices and dozens of lower-court judges. The torture trail provides a good sense of how President Bush and his picks think in one area. Voters should hear more from him and opponent John Kerry on the judiciary each envisions.