I suspect many of you agree with me that President Obama has been a disaster for the judiciary, filling up the federal bench with living-Constitution radicals drunk with power and phony "empathy" for the little guy whose rights they are determined to stamp out (see here, here, and here).
And yet, many of you ask: will Mitt be any better? Didn't he appoint liberals to the bench as governor of Massachusetts? One sees this charge leveled on multiple blogs.
Based on my initial research, I think the charge against Romney is unfair. First, a little context. In Massachusetts, all judicial appointments must be approved by the Governor's Council, an elected body not under the Governor’s control. During Romney’s term, Democrats held eight of nine seats on the Council. In that light, it was a victory that about one-fourth of Romney’s appointments were Republican.
Romney never had an opportunity to appoint a state Supreme Court justice, which is virtually the only state court position where political ideology is the decisive factor. Rather, Romney was appointing lower court judges – magistrates and trial court judges. At that level, it doesn’t really matter what the judge thinks about Guantanamo Bay, gay marriage, or the unitary executive. What matters is competence and being tough on crime. Those are exactly the criteria that Romney used. Even the Boston Globe concedes: “Romney was known for seeking prosecutors and other attorneys considered pro “law and order,” and was usually successful in sitting them on the bench.”
Romney reformed the judicial selection process through the creation of a Judicial Nomination Commission, and appointed Christopher Moore – a member of the Federalist Society – to chair the commission. The Federalist Society, as you may know, is the premier conservative legal organization in the U.S., promoting originalism and fighting against liberal judicial activism.
Romney has repeatedly blasted the Massachusetts Supreme Court decision that created – by judicial fiat – a right to gay marriage in the Commonwealth. Judge Robert Bork has backed Romney since 2008, when he said, “No other candidate will do more to advance the conservative judicial movement than Governor Mitt Romney … Governor Romney is committed to nominating judges who take their oath of office seriously and respect the rule of law in our nation.”
None of this guarantees that Romney will appoint conservative judges. There are no guarantees in this realm. Remember: Ronald Reagan appointees Sandra Day O’Connor and Anthony Kennedy often disappointed, and John Roberts has rendered an awful decision on Obamacare (but many great opinions in other cases). The one thing that we can say with absolute, 100 percent certainty is that Mitt’s judicial picks will be head-and-shoulders above Obama’s – and that makes all the difference in a system where the Constitution “means” whatever the judiciary says it means.