A Judicial Surprise

Now that some conservatives are in a tizzy about federal judges, here is something for them to ponder: The liberals on the U.S. Supreme Court just took a stand in favor of gun-ownership rights, while the conservatives on the court took a stand against them.

Go figure.

At issue is the law Congress wrote that says a person convicted of a felony "in any court" may not own a firearm. A fellow from Pennsylvania was charged with perjury and with illegal ownership of two handguns because he had answered "no" to the felony-conviction question. Turns out he had served time in Japan for a weapons-law violation.

So the question before the court was whether the phrase "in any court" meant in any court in the U.S. or in any court anywhere in the world. Quite sensibly, the liberals on the court ruled that since it was an American Congress that wrote an American law applicable to American citizens, then logically "any court" meant any American court.

The conservatives — Antonin Scalia, Anthony Kennedy and Clarence Thomas — took literalism to the ridiculous extreme and said that Congress meant any court in the world.

Justice Stephen G. Breyer, writing for the majority that included Sandra Day O’Connor, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg, said that to include foreign convictions would be unfair, since foreign courts do not follow American procedures in regard to a defendant’s rights. Amen. Witness the kangaroo courts in many of the world’s dictatorships, such as Cuba.

Breyer also said that if Congress wishes to include convictions in foreign courts, it should rewrite the law to say so.

Chief Justice William Rehnquist did not participate, since he had been out sick when the case was argued.

What this interesting ruling tells you is that the terms "liberal" and "conservative," "right" and "left," don’t easily apply to judges. What you want in a judge at the appellate level is someone who can make a sensible interpretation of the statutes without regard for politics or ideology. In this case, the justices so many people brand as liberal came up with the sensible interpretation, while so-called conservatives carried their literalist interpretation to the point of absurdity.

Furthermore, it is practically impossible to predict accurately how a judge will turn out once he or she has a lifetime appointment. Dwight Eisenhower appointed Earl Warren, who as attorney general in California had a reputation as a fire-eating anti-communist conservative. Once on the court, however, he became an anathema to the far right, which plastered the country with billboards saying, "Impeach Earl Warren." Go figure.

About the best you can do when choosing judges is to look for affirmative answers to these questions: Do they have a good education? If they served at the trial-court level, how many of their decisions have been affirmed on appeal, and how many overturned? Have they shown that they have a judicial temperament, which means can they keep their emotions, their ideology and their political opinions out of their decisions?

I can tell you an interesting and true story on this point. One of my newspaper’s reporters, an exceptionally good reporter, overheard a trial-court judge tell racist jokes. He was sure this obvious prejudice would show up in the judge’s decisions, but after spending weeks going through the judge’s cases, he had to admit that there was no evidence whatsoever that this judge carried his private prejudices into the courtroom. That judge was able to separate his private feelings and beliefs from his duty as a judge.

At best, appointing a judge is such a throw of the dice that it’s not worth getting excited about. The Democrats are wrong on this issue. If the nominee survives in the committee, he should get an up or down vote without a filibuster. Both Democrats and Republicans do the country a disservice when they vote along party lines. Their loyalty should not be to the party, but to the Constitution and to the people.

Charley Reese [send him mail] has been a journalist for 49 years, reporting on everything from sports to politics. From 1969 to 1971, he worked as a campaign staffer for gubernatorial, senatorial and congressional races in several states. He was an editor, assistant to the publisher, and columnist for the Orlando Sentinel from 1971 to 2001. He now writes a syndicated column which is carried on Reese served two years active duty in the U.S. Army as a tank gunner. Write to Charley Reese at P.O. Box 2446, Orlando, FL 32802.