Posted on July 12, 2002

by

Daniel Clark

While Tom Daschle, Patrick Leahy, and the rest of the Senate Democrats continue to block President Bush's judicial nominees on the grounds that they are such extremists that they pose a threat to the nation, keep in mind that their inactivity in that area leaves more decisions in the hands of judges like William Young.

Judge Young is the Chief Judge of the U.S. District Court for the District of Massachusetts. Although he's a Democrat, he was appointed, regrettably, by President Reagan, who made a number of similar appointments in an effort to get along with the Democrats, when they controlled the confirmation process in the Senate. This same pattern can be seen today. While only one of the nine Republican judges Bush has nominated to the U.S. Circuit Courts of Appeals has been confirmed, both of his token Democrat nominees were hurried through.

If only we had one of Reagan's "extremist" appointees, like Robert Bork, presiding over the Richard Reid case. Instead, we're stuck with Young, who threw out one of the nine charges against Reid on June 11^th, on grounds that one might generously refer to as dubious.

Richard Reid, better known as the shoe-bomber, was arrested last December after he tried to ignite plastic explosives in his shoe, on American Airlines flight 63 from Paris to Miami. The charge that Young threw out was filed under the USA Patriot Act, which was passed shortly after the September terrorist attacks.

The Patriot Act carries a penalty of up to twenty years' imprisonment for "[w]hoever willfully wrecks, derails, sets fire to, or disables a mass transportation vehicle or ferry." Reid's lawyer argued that this clause did not apply to the allegations against his client, because an airplane technically doesn't fall under the definition of "vehicle" in the federal Dictionary Act (U.S. Code: Title 1 Chapter 1). Judge Young agreed.

Given that this law's whole title is the Dictionary Act of 1871, it's easy to see why it does not explicitly consider airplanes, when it divides modes of travel between "vehicles" and "vessels." Young's argument is that this law defines a "vehicle" as a means of transportation on land, but does not, since airplanes weren't invented yet, consider means of air travel within that same definition.

It's frustrating to see a criminal charge dismissed on a technicality, but when a technicality exists, the judge can't very well ignore it. His job is to interpret the law, not to proofread it. If the Patriot Act technically did not make it illegal to disable an airliner, that would be the fault of the legislators who authored and passed it. Judge Young's decision, however unwelcome, would then be the correct one. The problem is that, in his willingness to believe in the existence of such a technicality, Young didn't bother to notice that the definition of "vehicle" in the Dictionary Act doesn't exclude airplanes at all.

Section 3 of the Dictionary Act says, "The word 'vehicle' includes every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land." If you think, based on this definition, that Young's argument is defensible, imagine that you've just placed your hand on the Bible and sworn to tell the truth, and ask yourself if an airplane is capable of being used as a means of transportation on land. The question is not whether that's how an airplane is commonly used, but whether it's capable of being used that way. The obvious answer is yes. Every time an airplane takes off or lands, it is used to transport people on land, from one end of the runway to the other.

Interpreting the law is a job that demands precision, but that quality is lacking among judges who are acceptable to a Democrat Senate, and that's by design. Just look at the way liberal judges read the Constitution. They know that the actual words in it won't add up to the results they desire, so instead they start rounding off. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" becomes the "separation of church and state." "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" becomes a "right to privacy."

Reading this way becomes habitual. Nobody would suggest that Judge Young wants to let a terrorist off the hook, but that's the effect of his reading of the Dictionary Act. His rounding off of the definition of "vehicle" just eliminates the word "capable," as if it were an inconvenient remainder in a long division problem.

The Democrats seek to retain control of the Senate by warning liberal voters what will happen if Bush follows through on his promise to appoint strict constructionists like Antonin Scalia and Clarence Thomas to the Supreme Court. But no Democrat would believe for a second that either Scalia or Thomas would fail to recognize that an airplane is a vehicle, even under federal law. They couldn't be as confident, however, in the judgment of John Paul Stevens, David Souter, Ruth Bader Ginsberg and Stephen Breyer, under the same circumstances. When enforcing the law becomes vital to our national security, even a Democrat ought to appreciate the value of judges who read the law as it is written.

The Patriot Act was passed by a huge, bipartisan majority. The bill passed the House by a vote of 356-66, and the Senate by a count of 98-1. All the Democrats who voted for that bill (or at least all those who meant it) have just received a tough but valuable lesson about legislating from the bench. They have voted in favor of a new law, but Judge William Young has told them that this law, which they helped to create, does not mean what it says it does.

Just maybe, somewhere in Washington, there's a Democrat congressman -- just one -- who will look at this shoe-bomber decision, and recognize the irony of legislators like Daschle and Leahy advocating that their own constitutionally assigned legislative powers be usurped by judges. Maybe some Democrats will experience a doubt, however fleeting, about the propriety of using an activist judiciary as a shortcut for what ought to be done legislatively, no matter how much more difficult it is to accomplish that way.

Okay, so that's a long shot, admittedly. But if the Democrats won't listen to reason, and they continue to block Bush's judicial nominees on the grounds that they take the law too literally, they run the risk of appearing insufficiently concerned about the terrorist threats we now face.

If Bush handles this right, he can take the attacks that have been made against his nominees and turn them around on the Democrats during this fall's campaign. Everybody who followed the unsuccessful nomination of Judge Charles Pickering to the Fifth Circuit Court knows that the charges of racism that were thrown at him were entirely phony. The opposition to his nomination was based not on concerns about his character, but instead on his conservative jurisprudence -- i.e., his respect for the written word of the law. In his legal opinions, Judge Pickering has criticized other judges who assume legislative authority. He has also been openly critical of capricious judicial edicts like Miranda v. Arizona and Roe v. Wade.

What if Judge Pickering, or somebody who shares his philosophy, had presided over the shoe-bomber case? We know that the Patriot Act charge would not have been thrown out, because there is no law that says it should have been. Yet it was because Pickering reads the law as it's written that the Democrats defeated his nomination, and maliciously attacked his character.

President Bush talks a lot about homeland security, but his broad proposals for bureaucratic reform are going to take a while to jell. For the time being, the voters have a difficult time grasping what effect his policies are going to have on them. Now is his chance to campaign on an issue of homeland security that is just as critical as the coordination of our intelligence operations, but much easier for ordinary Americans to understand.

If terrorist acts are to be treated as crimes, and the terrorists tried in criminal courts, justice can only be done if the laws designed to punish those crimes are respected. When a judge throws out a criminal charge against a terrorist, based on a nonexistent technicality, our homeland security apparatus is subverted. The confirmation of judges, like Charles Pickering, who abide by the actual language of the law, is crucial to our ability to justly punish the Richard Reids of the world. For thwarting that effort, the Democratic Party owes the American people an explanation.

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