Thursday, September 26, 2002
The conservatives are coming, the conservatives are coming: New York Times columnist Bob Herbert is sounding the alarm over President Bush's nomination of conservatives to the federal appeals court.
Is this supposed to come as some big surprise? Elections have consequences.
The Senate Judiciary Committee is considering two more of President Bush's appeals court nominees -- Michael McConnell to the 10th Circuit, based in Denver, and Miguel Estrada to the Court of Appeals for the District of Columbia Circuit.
Mr. McConnell, a law professor, has been a passionate opponent of abortion and has asserted that Roe v. Wade was wrongly decided and should be overturned. He has described abortion as "evil" and has suggested that embryos should be given constitutional protection.
(His nomination has apparently softened his stance, however, at least publicly. He recently told Judiciary Committee members that he now views Roe as settled law, and therefore his personal views are irrelevant. Pro-choice advocates are understandably skeptical.)
Why is this simple concept so hard for liberals to understand. One can disagree with a law passed by the legislature or with a ruling made by the Supreme Court and still apply the law. This same canard was raised during the nomination of John Ashcroft for Attorney General. (The arguments against Ashcroft amounted to a religious test for office, the current ones are a purely philosophical test for office.)
Herbert demonstrates the difference between liberal court nominees and conservatives. Conservatives are able to separate their personal views from applying the law. Liberals, on the other hand, follow the law only when it suits their belief system. In the case of Clinton nominee Bill Lann Lee, who was nominated, but never confirmed, to head up the Justice Department's civil rights division, stated in his Senate hearing that quotas were allowed under federal law -- despite the Supreme Court's ruling that quotas are they are not.
Some Democrats like to complain that the Republicans wouldn't bring Lee's nomination up for a vote -- that's a lie. Democrats refused to bring the nomination up because they knew they didn't have the votes to support the nomination.
Liberal advocacy groups have been left in a state of high anxiety by these two nominations. There seems little doubt that both men are prepared to advance the values of the right, if not the extreme right. But they are very difficult to fight. Mr. Estrada is an attractive nominee who could become the first Hispanic appointee to the Supreme Court. (A subtler, brighter Clarence Thomas?)
And Professor McConnell, who could well be President Bush's second appointment to the Supreme Court (it's assumed the first pick will be Hispanic), may benefit from the sheer fatigue of Senate Democrats having to fend off one nomination after another.
There's a typical argument -- Clarence Thomas is stupid -- he isn't. Several months ago Washington Post columnist Charles Krauthammer wrote in a column that liberals think conservatives are mean; conservatives think liberals are stupid. Both are true, however, as Herbert's statement shows, liberals also think conservatives are stupid. It's easier than arguing the merits.
But even if neither man makes it to the Supreme Court, it's important that both nominations be looked at closely. The political right has been relentless in its campaign to control the federal courts, and that campaign is getting awfully close to an absolute victory. Seven of the 13 circuit courts are already controlled by Republican appointees, and it is possible that within two years that control will extend to as many as 12, and maybe all 13 circuits.
In the popular imagination, the Supreme Court is the court of last resort. But in any given year, the Supreme Court decides fewer than 100 cases. The circuit courts, on the other hand, will issue rulings on 28,000 to 30,000 cases each year.
For those who are concerned about reproductive rights, civil liberties, health and safety issues, the environment, and on and on -- it might be a good idea to pay much closer attention to the continuing takeover of the federal courts by the right.
Republicans have made it a point to try to put conservatives on the court because Democrats have made it a point to put liberals on the court. Until the Democratic coup that changed control of the Senate, both sides had based their decisions on judicial nominations on making sure the candidates were qualified (i.e. they had legal experience), and that they would fairly enforce the law. Now, however, there is a philosophical test: You must not be a conservative.
The whole process is despicable. If the Republicans are going to control only one house of Congress, then it would be best if it was the Senate.
But the Democrats are setting a dangerous precedent. If they can quash judicial nominations based solely on philosophy with a Republican president in office, then don't be surprised if Republicans make a similar point the next time a Democrat sits in the White House.