What was Representative Mark Udall thinking when he responded in a debate with Bob Schaffer last week that he would like to see Supreme Court Justices like Byron “Whizzer” White?
Did he not get the memo from New Mexico Governor Bill Richardson that a pro-choice Democrat who lauds Justice White will end up with egg on his face? From the April 30, 2007 edition of the Rocky Mountain News:
Richardson confessed to a “mistake” in last week’s first Democratic debate. Asked to name the model of a justice he would appoint to the Supreme Court, Richardson cited the late Byron R. White â€“ one of two dissenters in the Roe vs. Wade decision legalizing abortion.
Richardson was asked Sunday to square that response with his support for abortion rights. He fumbled at first, questioning whether White was on the court at the time of the 1973 decision. He then explained he had been “thinking really fast during the debate” and had chosen White because White was appointed by Richardson’s hero, President Kennedy, and “was an All-American football player besides being a legal scholar.” The misstep, Richardson said, reflected his take-me-as-I-am philosophy. “You’re getting somebody who’s candid, who’s honest, who’s not going to be a consultant-driven candidate,” he said. “That’s pretty obvious, eh?”
The Denver Post reports Udall later “qualified” his choice of White:
Taylor West, Udall’s campaign spokesman, quickly qualified the choice, saying that “Mark definitely doesn’t agree with all the decisions that Justice White made.” “The point that he was making in talking about Justice White and Justice (Sandra Day) O’Connor is that both of these judges were people who were known for operating from the moderate center. They both were known for a consensus-oriented approach that addressed things in a pragmatic way,” West said.
Justice White was not the “moderate center.” In addition to dissenting in Roe v. Wade, he railed against those who believed the Constitution provided any privacy guarantees and even dissented in Miranda v. Arizona, the landmark decision requiring police to advise those they arrest of their right to counsel before answering questions.
Udall also said he’d join Senator Salazar’s “gang of 14” to prevent filibustering of judicial nominees by members of the minority party in Congress. The Post recounts this segment of the debate:
Q: When the Senate reconvenes, would you join a block of senators who agree to the “Gang of 14″ principles that block the minority party from judicial filibusters and prohibit the majority party from changing the Senate’s filibuster rules? Explain.
[Udall:] Yes — the ‘Gang of 14’ is a group of seven Republicans and seven Democrats who are working together to encourage the nomination and confirmation of mainstream judges and to keep the process from getting bogged down in partisan politics on either side of the aisle. This kind of bipartisan approach and emphasis on promoting mainstream judges, rather than ideologues carrying political agendas, fits with the approach I would bring to the U.S. Senate.”
As for Bob Schaffer, during his unsuccessful 2004 run for Senate, he said during a debate that he’d like to see judges like Mississippi’s Charles Pickering, according to the Post:
Critics pointed to the fact that the judge refused to implement federal sentencing guidelines in a 1994 cross-burning case (reducing the sentence of a convicted man significantly). In 1999, Pickering refused to grant a sentencing appeal for a mentally retarded man facing the death penalty for kidnapping and murdering a 13-year-old girl. Pickering left the Democratic Party in the 1960s over demands that Mississippi include blacks in its delegation to the national convention, a move he later said he regretted…..Schaffer said Pickering was a victim of a Congress increasingly bent on turning presidential appointments into political theater.
When the Senate refused to confirm Pickering for a seat on the 5th Circuit Court of Appeals, President Bush appointed him during a congressional recess. He served for a year and resigned at the end of his term , knowing he wouldn’t obtain Senate approval for a new term.
While the president nominates Supreme Court justices, the Senate votes to confirm them. Our next president likely will nominate between one and four new Justices. So far, both Udall and Schaffer have failed to impress in this important area.