THE NOMINATION of Richard Paez to the 9th Circuit Court of Appeals has been hanging around the Senate for nearly four years. The delay is unpardonable. But the case of Judge Paez -- who currently sits on the federal district court in California -- is more complicated than other recent nominations fights have been. Judge Paez should, in our judgment, be confirmed, but the Republican opposition to him is not entirely frivolous.
Back in 1995, Judge Paez made a speech before a group of students at his old law school that dealt with the diversity of the bench in California. In this speech, he made the following remarks: "The Latino community has, for some time now, faced heightened discrimination and hostility, which came to a head with the passage of Proposition 187. The proposed anti-civil rights initiative will inflame the issues all over again, without contributing to any serious discussion of our differences and similarities or ways to ensure equal opportunity for all."
For a sitting judge to disparage ballot initiatives that were likely subjects of litigation was inappropriate. Moreover, the initiative that Judge Paez termed "anti-civil rights" -- which later became Proposition 209 and, after passing, ended affirmative action in California state programs -- is a hot-button issue for many Republicans. A federal court, in a move that for some Republicans has become a kind of emblem of liberal activism, initially held Proposition 209 unconstitutional and prevented it from taking effect. A principled conservative could suspect, based on Judge Paez's comments, that he might be sympathetic to such thinking and would be more generally a liberal activist on the bench.
But this inference seems ungenerous. While his comments were ill advised, Judge Paez is far from the first judge to express his opinion on political matters while serving on the bench. Richard Posner, the distinguished chief judge of the 7th Circuit, in fact, recently published a highly opinionated book on the Monica Lewinsky scandal. Judge Paez's remarks, by contrast, were unpublished and to a small group of people in the context of a speech about the judiciary. And his record, apart from this speech, hardly portrays a man itching to impose his politics from the bench.
Moreover, to the extent that the speech can be construed as prejudging the constitutionality of the ballot initiatives, Judge Paez has apologized and stated that he had not meant to suggest he believed them unconstitutional. If such an error should keep a man with an otherwise distinguished career from being confirmed, we wonder how many current federal judges would be barred from elevation to higher courts. Voting against Judge Paez on the basis of this speech would be, in our judgment, a serious error. But if Republicans mean to kill his nomination for such an infraction, they should at least cast votes.