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All the Hypocrisy That's Fit to Print By: Henry Mark Holzer
FrontPageMagazine.com | Friday, September 20, 2002


The scandal of Senator Patrick Leahy's Judiciary Committee treatment of Bush Administration nominees to the federal bench is by now well known. The most recent victim — a member of the Texas Supreme Court who failed to garner committee approval, because of a straight 10-9 party line vote — was, predictably, opposed editorially by The New York Times. While that wasn't surprising, the Times' open hypocrisy has not often been so obvious.

The Times editorial accused Justice Priscilla Owens of being "one of the most conservative members" of Texas' conservative Supreme Court, "far from the mainstream," and a tool of the administration's attempt "to use the judiciary to advance a political agenda that is out of step with the views of most Americans" — for example, turning "the courts into a champion of big business, insurance companies and the religious right."

Justice Owens was also accused by the Times of "unconscionable judicial activism," of a "willingness to ignore the text and intent of laws that stand in her way," and of ignoring statutory language and substitut[ing] her own views."

And, for good measure, the Times — which recently distorted Henry Kissinger's position on attacking Iraq — righteously accused Justice Owens of "a disturbing lack of sensitivity to judicial ethics."

Let's examine each of these charges.

"One of the most conservative members" of a conservative court." This arrow into the heart of Owens' nomination is a stark confession by the leftwing Times that, regarding federal judgeships during the Bush Administration, it is ipso facto disqualifying to be a conservative, let alone to sit on a conservative court. Had The Wall Street Journal, for example, editorially opposed the nomination of a liberal judge sitting on a liberal court, the Times would have bellowed, "McCarthyism."

"Far from the mainstream." Here, the omniscient Times arbitrarily asserts that there is some sort of "mainstream" in America today, who it consists of, what it believes, and that those beliefs are not conservative. Putting aside that The New York Times is presumptuous in the extreme, and that its partisan notion of being "mainstream" should be a qualification for federal judicial office, one has to ask why this self-appointed judicial watchdog newspaper didn't express the same reservations when other Presidents nominated arguably non-"mainstream" candidates like the Ninth Circuit judge who recently held unconstitutional the recitation of our Pledge of Allegiance.

"Using the judiciary to advance a political agenda that is out of step with the views of most Americans" — for example, turning "the courts into a champion of big business, insurance companies and the religious right." The adage "the pot calling the kettle black" comes to mind. For The New York Times it was more than acceptable — indeed it was solemn duty — for the liberal Warren Court to turn America's criminal justice system on its head by creating ersatz "rights" for criminals. The Times cheered when Warren, Brennan, Douglas, Black, Goldberg, Fortas, and others, handcuffed, not the criminals but the police. That "political agenda" was certainly "out of step" with the views of most Americans (even the "mainstream," probably) — and, worse, it transformed the Supreme Court of the United States, as well as lower federal and state courts, into champions of criminals.

"Unconscionable judicial activism ... willingness to ignore the text and intent of laws that stand in her way," and of ignoring "statutory language and substitut[ing] her own views." To put the point politely, it is absurd for The New York Times to criticize "judicial activism" and judges who ignore legal text. This, from a newspaper that has been in the vanguard of leftwing judicial activism? From a newspaper whose "views" have supported Communists, racists, feminists, trial lawyers, and others whose special agendas have used the courts to obtain "rights" and remedies they were consistently unable to get from popularly elected (and thus politically responsible) state and federal legislatures? One example should suffice. The criminal defense lobby was able to convince a receptive Supreme Court, with the Times conspicuously cheering from the sidelines, that even though the Constitution expressly provided for capital punishment, capital punishment was somehow unconstitutional. This was rank "judicial activism": a decision that ignored constitutional language and substituted the leftwing Supreme Court members' "own views" for what the Framers had expressly provided.

"Disturbing lack of sensitivity to judicial ethics." This charge was — irresponsibly — short on facts, making it hard to judge whether the Times was on to something legitimate However, there was no allegation that any judicial watchdog committee had ever censured Justice Owen for raising money for her election, or for later declining to recuse herself. So the Times opens itself up to the charge of institutional bias when one recalls how no Times editorial criticized Lyndon Johnson's appointment to the United States Supreme Court of his crony Abe Fortas — fixer, manipulator, and much worse. (Fortas, for those of us who do remember, continued doing legal business while on the High Court, as well as giving President Johnson legal and political advice — until he was forced to resign in disgrace.)

It may be that The New York Times' opposition to Justice Owens' nomination to the United States Court of Appeals for the Fifth Circuit played a role in her defeat (although the newspaper had plenty of help from the leftwing apparatchiks and Judiciary Committee democrats). But that opposition comes at a price. It once again underscores that The New York Times, our so-called "newspaper of record," has its own partisan agenda of its own — one, I might add, that is far from the mainstream.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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