Law panel explores Supreme Court appointments

Americans are carefully considering candidates during the 2004 election for positions in both the legislative and executive branches.

But for members of the UNC chapter of the American Constitution Society, the judicial branch plays an especially important role in their choices.

Experts met in the School of Law's Rotunda on Wednesday to discuss the confirmation and predicted behavior of U.S. Supreme Court justices.

"People seem to believe that the courts are out there making these lofty decisions that never touch your life, and we all know that is so far from the truth," said Melody Barnes, senior fellow at the Center for American Progress.

"People should be engaged, people should care, people should care how the Constitution is read and how the laws are interpreted and thus how those laws and Constitution will affect their lives."

The event was co-sponsored by the society and the UNC chapter of the ACLU.

"We're looking at judges that advocate a more progressive view of the Constitution," said Michael Hoffman, vice president of the society. "Compared to the federalist movement, the progressive movement is relatively new."

Much of the discussion concerned the Senate's decisions to confirm - or not confirm - justices nominated by the president.

Erwin Chemerinsky, a law professor at Duke University, said that in the 19th century, one-fifth of all presidents' judicial nominees were rejected by the Senate.

While the issue has received public attention recently, particularly during the start of President Bush's term, Barnes said it is not a new one.

"Often the media today would tell you that the battles taking place between the Senate and the White House are brand new, that this is something that has never been heard of before," Barnes said.

"And often, particularly when I was on the Senate Judiciary Committee, there were many conservatives kind of pining for the days where the Senate knew its place in the confirmation battle and ideology was the main concern.

"Well, I would say that's a good story; it just has no bearing on the truth or history or reality."

Some critics claim that Senate intervention and dogmatic partisanship is slowing the judicial process.

"My suggestion is that a couple of our more statesman-like members of the Senate ... ought to try to come up with a plan whereby filibustering would stop, people would get an up or down vote and we would get people either defeated or confirmed to the appellate courts without great, great delay," said George Leef, director of the John William Pope Center for Higher Education Policy.

"America is becoming like two gangs of British soccer fans."

But Barnes said the media tends to focus more on judges who don't get confirmed than those who do.

"President Bush has had over 200 of his nominees confirmed and there are filibusters against 10," Barnes said.

"I would hardly say there is a blockade against Bush's nomination process. Many nominees are flowing through the process very quickly, as they have in many prior administrations."

Regardless, judicial appointment decisions play a key role in this year's presidential election.

Chemerinsky said the fact that two Supreme Court justices are over the age of 80, and a couple more over the age of 70, means that it's likely there are going to be vacancies in the next four years.

"We've gone 10 years now since there's last been a vacancy on the Supreme Court, the second longest stretch in American history. The longest was early in the 19th century," Chemerinsky said. "It's almost unthinkable that the same nine justices will be together on January 20 in 2009."

He also said the court has a 5-4 or 6-3 split in almost every area of constitutional law.

Affirmative action, campaign finance reform, abortion, civil rights and criminal procedure are issues likely to be affected by a new appointment.

A more broad issue that frequently divides parties is the way the Constitution is interpreted.

Leef said Libertarians support any position in "defense of freedom."

He said he did not support the view that some rights are fundamental and should be closely-guarded, where others are less important and can be left to the wills of legislatures.

"It'd make a tremendous change in American jurisprudence to get rid of this ... completely indefensible idea that voting, for example, is a fundamental right which must be protected," Leef said.

"But property rights and economic rights, well, whatever the legislature wants to do is fine with us."

Contact the State & National Editor at stntdesk@unc.edu.