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Sunday, August 27, 2006

Romney's Judicial Appointments and Philosophy: No, it's not the "pro-gay rights", "pro-activist judges" picture painted by some

What I've created below is in response to a commonly recurring attack on Romney: that he can't be trusted to appoint good conservative/constructionist judges because of his record of judicial appointees as Massachusetts Governor, specifically regarding gay-activist judges.

The issue came up in a discussion thread to an article I posted on Free Republic (Over 135 comments so far, and some heated debate). One comment (#123), by JohnnyZ summed up the most common attack:

Romney's record on judges is perhaps the most atrocious part of his political record.

He has nominated not one but TWO homosexual liberal Democrat gay marriage activists as judges in Massachusetts. Most of his judicial nominations have been Democrats. There are no reported instances of Mitt fighting for more conservative judges in Massachusetts. By all accounts the liberal Democrats who must approve his picks have had no complaints with his selections. (That's a good indication he's not doing his job right!!!)

I wouldn't put anything past a flip-flopper like Romney, but going from nominating pro-gay marriage activist Democrats, who are openly homosexual themselves, to nominating conservative justices for the Supreme Court -- well, really, it does strain credulity.

Romney has also been attacked on Red State (Usually by Gary Glenn) several times on this issue and it will be a recurring mantra for those trying to discredit Romney on the issue of abortion (since SCOTUS nominees represent the greatest influence a POTUS can have on the abortion issue).

Governor Romney has been criticized by some conservatives for not appointing enough Republican judges. As you read this, I think you'll come to understand that Romney has done an excellent job on judicial appointees, has been pragmatic, and has navigated the liberal waters of Massachusetts politics better than one would have expected. Hopefully, this piece, in combination with Nathan Burd's excellent piece "A Pro-Life Perspective on a Mitt Romney Presidency" can act as resources for Romney supporters wanting to "clear the air" when Romney is incorrectly criticized on these points.

Much of what follows comes from a Boston Globe article from July 2005. I have "sterilized" out much of the anti-Romney slant that we've all come to expect out of that left-leaning rag (but you can go to the link and read it all).

As of one year ago Romney had nominated 9 Republicans and 14 Democrats as judicial appointees (and a host of "unenrolled" appointees) . . . this in a state where Democrats outnumber Republicans nearly 4-1 and the legislature is 87% Democrats. Sounds like Romney is beating the statistics there! But what is impressive, is that for Romney, it's not just about playing politics with judicial appointees. The article states:

With increased attention on judicial nominees after President Bush's nomination of John G. Roberts Jr. to the US Supreme Court, Romney said Friday that he has not paid a moment's notice to his nominees' political leanings or sexual orientation -- or to the impact his choices might have on a future presidential run. He said he has focused on two factors: their legal experience and whether the nominees would be tough on crime. He said most of the nominees have prosecutorial experience.

The governor said that, so far, he has had few chances to appoint judges to the highest state courts, where his criteria would change to include ''strict construction, judicial philosophy."

''With regards to those at the district court and clerk magistrate level, their political views aren't really going to come into play unless their views indicate they will be soft on crime, because in that case, apply elsewhere," Romney said.

The above is a key point. Ziuko on Red State commented: "If Federal courts are the major leagues, state [and district] courts aren't even the minor leagues, they're a pick up game of tee ball. Having the right connections seems to be about the only important attribute for any candidate. Judicial philosophy never seems to enter into it."

So, I would ask what the big hullabaloo is about Romney's appointments (the two that had a history of gay activism OUTSIDE of the courtroom)? Who gives a rip if a small-time criminal court judge is gay!?!--especially if they have a judicial record of being tough on crime and are working in criminal courts!

Romney won praise in the legal community when he replaced regional judicial nominating committees that were viewed as politically tainted with a centralized Judicial Nominating Commission. The commission considers applicants using a ''blind" first phase of the selection process that removes names from applications in an attempt to ensure the candidates will be judged on their merits. In addition, all of Romney's nominees have been submitted to a Joint Bar Committee on Judicial Nominations, which rates candidates as qualified, well-qualified, or unqualified -- and each has been found to be either qualified or well-qualified.

As a Harvard Law cum laude graduate, Romney obviously knows a thing or two about proper qualifications for a good judge . . . not one that he's recommended has been considered "unqualified."

The BG article continues:

there is evidence to suggest that Romney is making sure his fellow Republicans and conservatives get a piece of the action.

Romney has faced criticism from Governor's Councilors and some bar associations for failing to nominate more women, minorities, and defense attorneys to the bench. Seeking to counter such attacks, Romney's appointee to the chairmanship of the Judicial Nominating Commission, Boston lawyer Christopher D. Moore, has reached out to minority and women's bar associations to encourage members to apply. He's done the same with the state lesbian and gay bar association, which also has a seat on Romney's joint bar committee.

Later, some more about Moore:

Romney's choice to chair the Judicial Nomination Commission, Moore, is a member of the Federalist Society, a conservative legal group that fights ''judicial activism" and promotes the legal system as the preeminent venue for protecting ''traditional values."

Then comes one of the "kickers" . . . seeing who Romney has to get his nominees passed through:

After Romney nominates the candidate, the pick must be approved by the Governor's Council , where Democrats hold eight of nine seats [all of them elected officials . . . not Romney appointments see here]. . .

''He's tried to have a process devoid of politics, [but] he also has to get his nominees approved by the Governor's Council, and that is not a bipartisan body," said Jones, of Reading. ''The biggest problem in trying to reform the system to make it devoid of politics is that not everyone else buys into that model."

Romney, asked if he has engaged in any horse-trading with Democratic politicians, said: ''So far I have not ever given any weight whatsoever to whether I think someone can make it through the Governor's Council. I send them individuals who I feel are highly qualified and have the right judicial temperament related to crime and punishment

But what about higher level appointees?

Peter Vickery, one of the Democrats on the Governor's Council, says he believes Romney and Moore would seek far more conservative jurists if a vacancy were to pop up on the Supreme Judicial Court, which delivered the gay marriage decision that Romney has routinely blasted.

Some of Romney's nominees do have stellar Republican or conservative bona fides. For example, Romney's pick for Peabody clerk magistrate, Kevin L. Finnegan, is a former two-term Republican state representative. Another choice was Bruce R. Henry, the son-in-law of former SJC Justice Joseph Nolan -- whom Romney wanted to represent his administration in seeking a stay of the court's gay marriage ruling.

Taking another angle altogether . . . Romney recently refused to re-appoint David Gorton, the former Commissioner on the Appellate Tax Board (a panel of five judges), in part because of his questionable ethics and his outspoken gay activism negatively influencing his job performance. According to this article:
"I won't rule out homophobia," said Gorton, who has been a gay rights activist and community leader. From 1988 to 1994, Gorton served as chair of the Greater Boston Gay &Lesbian Political Alliance.

Currently, he is on the board of directors for The Gay & Lesbian Review, serving as its clerk.

The rub for Romney, Gordon believes, stems from the governor's presidential ambitions. "The religious right hates gay activists with a passion, and I am the kind of guy who would raise red flags," Gorton said. "Although I am a judge on the job and an activist on the side, I fit their stereotype of 'activist judge.'"

Although no gay-marriage tax cases have yet to come before the board, Gorton believes it is only a matter of time before they will.
Gorton, who has served on the board for more than nine years, has expertise and experience with both kinds of appeals.

Looks like a position where a gay activist could negatively swing decisions/opinions. HUGE RED FLAG!! Fortunately, Romney had the sense to not re-appoint him.

Therefore, does Romney get credit for taking away one gay activist judge? Will this subtract out either of the two that the anti-Romney conservatives are complaining about? I'm guessing they'll choose to ignore that piece of history.

JohnnyZ said that Romney appointed "TWO homosexual liberal Democrat gay marriage activists"

Well, lets look at these appointees in more depth. First is Stephen S. Abany who was appointed to district court(as an "Associate Justice," the lowest rung at the district court level) . . . first off, it turns out that he IS NOT a registered Democrat (so JohnnyZ was wrong again . . . no surprise there I guess, I'm getting quite used to it) but his leanings and voting are generally liberal (AKA Democratic). Abany was 57 years old when he was appointed to a DISTRICT Court . . . not even a remote threat to rise up through the judicial system to become a Supreme Court caliber appointee.

The other appointee JohnnyZ refers to isn't even homosexual (as far as anyone has publicly claimed). Marianne C. Hinkle, a longtime state and federal prosecutor (and VERY TOUGH ON CRIME), was the another nominee in question. She's a Democrat and a member of a group that tries to promote gay rights in the Catholic church but has no record of judicial/courtroom activism. She was appointed at the same "lowest rung" at the District Court level as Abany and she was similarly in her late 50's when appointed.

This Romney guys knows what he's doing. He has been pragmatic and wise in his appointments given the environment he works in.

Also, Romney has been a long-time and outspoken opponent of activist judges. He has tight ties with the Federalist Society and his private charity group has donated to it (liberals have criticized this before). What follows now is some of Romney's extensive record of being against activist judges and on coming down on the conservative side of court decisions:

These Boston Globe piece excerpts help show that Romney is on the right side of the judicial activism issue:

WASHINGTON -- Governor Mitt Romney leveled an unusually personal attack yesterday at the Supreme Judicial Court for legalizing same-sex marriage in Massachusetts, telling a group of conservative lawyers and judges that the justices issued the ruling to promote their values and those of ''their like-minded friends in the communities they socialize in."

Though Romney has criticized the SJC's watershed 2003 decision many times before, the broadside he delivered at the Federalist Society's National Lawyers Convention in Washington, D.C., was an atypically sharp and direct attack on the four justices who found that the Massachusetts Constitution afforded gays and lesbians the right to marry.

''If a judge substitutes his or her values for those values that were placed in the constitution, they do so at great peril to the culture of our entire land," he said.

The remarks won applause from the 500 lawyers, scholars, and others who packed a ballroom to hear Romney's speech.

. . .

Romney ended his speech by praising the new chief justice of the Supreme Court, John Roberts, and President Bush's current pick to replace outgoing Supreme Court justice Sandra Day O'Connor, Samuel A. Alito Jr.

Several Federalist Society members said afterward that they were impressed by what they heard from Romney. ''I think he said the right thing: Decisions should be left to the people," said Peter Urbanowicz, a Dallas lawyer.

And quotes back from 2004 from another piece:

Romney: ''Beware of activist judges. The Legislature is our lawmaking body, and it is the Legislature's job to pass laws. . . . While the law protects states from being forced to recognize gay marriage, activist state courts could reach a different conclusion, just as ours did. It would be disruptive and confusing to have a patchwork of inconsistent marriage laws between states. Amending the Constitution may be the best and most reliable way to prevent such confusion and preserve the institution of marriage." (Wall Street Journal op-ed, Feb. 5, 2004)

Romney: ''The real threat to the states is not the constitutional amendment process, in which the states participate, but activist judges who disregard the law and redefine marriage in order to impose their will on the states, and on the whole nation. At this point, the only way to reestablish the status quo ante is to preserve the definition of marriage in the federal Constitution before courts redefine it out of existence." (Testimony to Senate Judiciary Committee, June 22, 2004)

Even earlier that year he wrote a powerful opinion piece in the Wall Street Journal called "One Man, One Woman: A citizen's guide to protecting marriage"

Beware of activist judges. The Legislature is our lawmaking body, and it is the Legislature's job to pass laws. As governor, it is my job to carry out the laws. The Supreme Judicial Court decides cases where there is a dispute as to the meaning of the laws or the constitution. This is not simply a separation of the branches of government, it is also a balance of powers: One branch is not to do the work of the other. It is not the job of judges to make laws, the job of legislators to command the National Guard, or my job to resolve litigation between citizens. If the powers were not separated this way, an official could make the laws, enforce them, and stop court challenges to them. No one branch or person should have that kind of power. It is inconsistent with a constitutional democracy that guarantees to the people the ultimate power to control their government.

With the Dred Scott case, decided four years before he took office, President Lincoln faced a judicial decision that he believed was terribly wrong and badly misinterpreted the U.S. Constitution. Here is what Lincoln said: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal." By its decision, the Supreme Judicial Court of Massachusetts circumvented the Legislature and the executive, and assumed to itself the power of legislating. That's wrong.

Yet another quote:
''He's trying to get candidates who are conservative and probusiness and who have a prosecutorial background, tough on crime, and to use the words that have been flying around for a few years, he doesn't want any of those activist judges on the bench," said Kathleen M. O'Donnell, past president of the Massachusetts Bar Association.

From the Christian Broadcasting Network:

"As governor, all of the issues that have come to my desk that have dealt with the matter of abortion, I have decided on the side of life," Romney said.

The pro-life Romney now seems to have the entire social conservative values package. He is also not pleased with activist judges and supports the push for a constitutional amendment protecting traditional marriage.

"The idea of not allowing ‘Under God’ in the Pledge of Allegiance or taking ‘In God we trust’ off our coins – those are just nutty," Romney said.

While in Georgia recently Romney said of the Gitmo ruling:

Gov. Mitt Romney of Massachusetts said Thursday that the U.S. Supreme Court ruling on Guantanamo Bay detainees was just another reason why the nation should elect a Republican president again in 2008 _ to get more conservative judges on the high court.

The Supreme Court ruled that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees, saying in a strong rebuke that the trials were illegal under U.S. and international law.

The court declared 5-3 that the trials for 10 foreign terror suspects violate U.S. law and the Geneva conventions.

"To apply the Geneva accords is very strange in my view,"

On Eminent Domain Ruling (part of this is from the Hugh Hewitt show):
HH: Last question, Governor. Today, the Supreme Court upheld a extraordinary exercise of eminent domain on private property for transfer to other private property. Are you surprised by this? Does it alarm you?

MR: You know, the Supreme Court made an error in judgment on this one. You know, I understand the purpose of eminent domain, to make sure that when roads need to be built, or public purposes are involved, that private property can be taken when there's fair compensation. But to basically say a mall developer could get eminent domain to take away peoples' homes, that is not a good idea. The liberals on the Court made a mistake on this, and we're going to have to get a Court that's willing to stand by the rights of property owners

Obviously, Romney's pragmatism will continue to turn off some ultra-conservatives and they will continue to label him as a RINO or some other derogatory label. But many of their attacks are either dishonest or flat out wrong and need to be combated.

Are there more conservative politicians out there? Sure.

Can any of them make a serious run at winning the presidency? Not looking like it now.

Can any of them lead as effectively as Romney could? I highly doubt it.

Romney's record of judicial appointees is not worrisome to this Reagan Republican.

I look forward to a potential President Romney nominating constructionist and qualified individuals to the SCOTUS, just like he has said he would. One thing you'd be hard pressed to attack Romney on is his record of keeping campaign promises. He has been a man, and politician, of his word--truly a rare gem in our country today.


Nathan said...

Great job, Jeff! This is a key issue and it deserves attention. Thanks!!!


NorthLibertyRepublican said...

This is a great article, it hits the nail right on the head! Thanks, Jeff!

Anonymous said...

Awesome stuff Jeff! That is one detailed analysis. Looks like Romney has been pragmatic about his appointees . . . like you say.

Carol McKinley said...

Catholics in Massachusetts who have experienced Mitt on a day to day basis are preparing several reports to pass around to prolifers.

carol mckinley said...

I can tell you that the bigger issue for Catholic prolifers in Massachusetts is certainly not the fact that he has changed positions. (We call that conversion, and most of us have been through it on various things.)

The fact of the matter is, at the very time we would read his statements that he had changed positions,that he understood the value of life from the moment of conception, that he understood that Catholics were being forced to kill an unborn child if he did not exempt us under religious protections afforded to us by law regarding passing out abortifacients at hospitals and pharmacies - he went ahead and denied us our civil and constitutional rights of protection. Illicitly, he sided with Planned Parenthood and directed that we be forced.
During his tenure, he has repeatedly undermined parents who objected to what his own Department of Education was forcing upon children as righteous sexual practices - all the while, claiming “he” had a conversion. I can assure you that the sexual concepts he endorsed while preserving the solitude of the sanctity for himself, we found unhelpful and in fact, disingenuous.