Kyl: Stopping Judicial Obstruction

Guest Opinion

Another Reason to Stop the Obstruction of Judicial Nominations

By Jon Kyl, U.S. Senator
December 16, 2004

It's common knowledge that America's judicial system is chronically short of judges, thanks in part to an orchestrated campaign by Senate Democrats to use the filibuster to deny an up-or-down vote to an unprecedented number of President Bush's appellate court nominees.

That problem is bad enough in its own right. Caseloads back up, witnesses' memories fade, and in many cases justice delayed is, indeed, justice denied. But there's also another important reason for push for fresh blood on the bench.

This parallel problem is an urgent need to restore a sense of balance and reason to the judges currently sitting, some of whom have been turning out increasingly skewed and perplexing decisions over the past few years.

Some problematic decisions, like the arbitrary redefinition of traditional marriage by the Supreme Judicial Court of Massachusetts, are the products of state government appointments that are beyond Congress's reach. But the federal bench provides numerous other examples, and has plenty of open seats that, if filled by adherents of judicial restraint, could restore a healthier sense of balance to our legal system.

Regular readers may recall a column on a pronouncement last summer by the 9th U.S. Circuit Court of Appeals -- the same folks who ruled that the Pledge of Allegiance is unconstitutional and tried to overturn California's "three strikes and you're out" law -- that convicted felons should be allowed to vote because of a "statistical disproportionality" in the racial composition of prison populations.

But you don't have to go to San Francisco, where that court is based, to find judicial activism run amok. The latest example is from Philadelphia's 3rd U.S. Circuit Court, and is perhaps the most galling yet, particularly to our military service personnel and those who love them.

That body moved last month to block enforcement of the "Solomon Amendment," legislation that requires colleges and universities to allow Defense Department job recruiters to talk with students on campus, just as other prospective employers do.

The notion that any mainstream institute of higher learning would exclude representatives from the same military that is right now busy defending our rights and freedoms around the world is repellant to most Americans. But then, it's no secret that college faculties are not particularly representative of the overall public.

And so we find that ad hoc coalition of professors and law schools, based on their opposition to the Pentagon's "don't ask, don't tell" policy on homosexuals in the military, has successfully filed suit, claiming what the Weekly Standard described as "a First Amendment infirmity in the Solomon Amendment, at least as applied to schools that claim to be conscience-bound not to let their students talk to military job interviewers."

I shudder to think how such a decision must affect the morale of our troops in harm's way in places like Iraq and Afghanistan. It certainly seems unlikely that any of the judges who ruled in the case (much less the plaintiffs) has a son or daughter in uniform.

At any rate, one hopes the Supreme Court will quickly overturn this dreadful precedent, and in terms strong enough to make college and university administrators think twice the next time they feel like poking the brave soldiers who protect them in the eye.

Sen. Kyl is chairman of the U.S. Senate Republican Policy Committee and the Judiciary Subcommittee on Terrorism, Technology and Homeland Security.