Molly Ivins August 12

AUSTIN, Texas — Always nice to see our Texas pols demonstrating their profound understanding of the Constitution.

U.S. House Majority Whip Tom DeLay, the old bug killer from Sugar Land, has lately been on a tear about impeaching federal judges. According to the quaint and dated document under which our government theoretically operates, federal judges can be impeached for "treason, bribery and other high crimes and misdemeanors," but DeLay, in his wisdom, declares that "an impeachable offense is whatever the majority of the House of Representatives considers it to be at a given moment in history," including "legislating from the bench" and "usurping the legislative function." That means doing anything Tom DeLay doesn't like. He told the Washington Times: "Congress has given up its responsibility in overseeing judges and their performance on the bench, and we intend to revive that and go after them in a big way."

This gambit reminded the moderate New Republic why Republicans are known by the sobriquet "The Stupid Party." But this idea was so popular with Republican right-wingers that DeLay later crowed: "They loved it; they think I'm a god on this one." Tom DeLay for god — as they say in advertising, it's a concept.

Meanwhile, Sen. Phil Gramm, our own eternal bundle of sweetness and light, is opposing the nomination of Judge Mike Schattman of Fort Worth to the federal bench, even though he OK'd the nomination when President Clinton originally made it in 1996. In fact, Gramm indicated that he had no problems with Schattman on three occasions. But now Gramm maintains that Schattman is a "political activist."

True, Schattman is a Democrat — it would be odd of Clinton to have nominated any other flavor — and because judges in this state run for office, Schattman has been semi-active in the party. He served as a delegate to the 1992 Democratic National Convention. Similar signs of political activism on the part of Republican nominees — such as serving as campaign manager, being a national delegate, holding party office, etc. — never bothered Gramm in the least.

The one question that Gramm has raised about Schattman's "activism" speaks volumes about Gramm. Schattman was one of 10,000 people who participated in a 1993 Fort Worth prayer vigil to protest the sentence of probation given to the skinhead killer of a black man. As most Fort Worthians recall, that sentence — the consequence of the jury's misunderstanding of a judge's instructions — inspired widespread outrage. The subsequent march and prayer rally were considered a model of peaceful protest; the police chief and numerous other officials participated in it.

Now let's look at this carefully: Gramm thinks that participating in a prayer rally to protest a killer's being given probation makes someone unfit for the federal bench.

Whither tough-on-crime, Sen. Gramm?

In one of those delirious moments that so often occur with the senator, Gramm said last week that it was "a shame" that his opposition to Schattman became public. Gee, until Gramm put out a news release about his opposition, it wasn't public.

Sen. Kay Bailey Hutchison, who had also OK'd Schattman's nomination initially, has simply announced that she will not give any reason at all for opposing him now. Who are we to know her reasons why?

Those still inclined to search for a reason might want to consider a meeting of the Senate Republican caucus this spring at which a strategy of delaying Clinton's judicial nominees was chosen as a fine thing to do. They seem to have been inspired by GOP political strategists who think that complaining about liberal judges is a winning political issue.

There are two problems with the strategy, which is advocated by Bill Kristol of The Weekly Standard and other Republican gurus. The first is that the Republican senators had already gone into a slowdown on judicial appointments amounting to a stall in 1996. This is not unusual before a presidential campaign — you can always hope your guy will win. But the upshot of the '96 slowdown followed by the '97 slow-to-a-crawl is that the country is now direly short of federal judges. In '96, according to the Justice Department, the Senate confirmed just 17 district judges and no appellate judges; this year, only nine judges have gotten through — 101 federal judgeships are vacant; 23 are considered "judicial emergencies."

The second problem with this curious back-door approach to shutting down government is that Clinton's nominees don't fit anyone's description of "liberal activist." He has nominated the most bland-vanilla set of appointees imaginable; any question raised about any of them means that the White House pulls down the nomination, no fight. Clinton has yet to waste a particle of political muscle backing a judicial nominee.

As a political strategy, attacking "activist" judges also leaves something to be desired. The federal judiciary is dominated by Reagan-Bush appointees, and today's judicial activists are on the conservative side.

As Herman Schwartz, author of "Packing the Courts: The Conservatives' Campaign to Rewrite the Constitution," points out in an op-ed in the Los Angeles Times, "Chief Justice William Rehnquist and his allies have struck down hundreds of federal, state and locally adopted affirmative-action plans, as well as scores of congressional statutes on crime, religion, fair-labor standards, gun control and legislative-executive relations. Justice Scalia not only wanted to strike down the independent-counsel law, but he has often expressed his contempt for legislators and the legislative process."

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Molly Ivins is a columnist for the Fort Worth Star-Telegram.

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