The Entire Judicial Picture

Jeff Alworth

"Only in the United States Senate could it be considered a devastating option to allow a vote.  Most places call that democracy."

--Senate Majority Leader Bill Frist at the Justice Sunday

I've been watching the developing fight over judicial nominees with more interest than is healthy, in part because Frist, Dobson, et. al. decided to drag religion into the middle of the fight.  One thing that mystifies me is why Republicans are never called on their practice of progressively dismantling minority safeguards--dismantling that has necessitated Democratic use of the filibuster.  Whenever I hear a Republican whine "all we want is an up or down vote..." I wonder why jounalists don't point out that that's really not all they want.  It's just the last thing.

A little history.  As People for the American Way recount, things were different as recently as six years ago: 

During the Clinton administration, the White House made significant efforts to consult with senators of both parties prior to nominating judges. With respect to nominees for federal district courts, senators or other elected officials submitted specific recommendations to the White House. In some states represented by both a Democratic and Republican senator, the two senators agreed to divide responsibility for suggesting nominees. In other instances, the Clinton administration received feedback and suggestions directly from Republican and Democratic senators....

Genuine consultation also took place on appeals court nominations. Proposed Clinton administration selections were routinely discussed with senators of both parties, and nominations were sometimes delayed for several months as a result. Press reports indicated that President Clinton consulted with Senator Orrin Hatch, both before and after he assumed control of the Senate Judiciary Committee, prior to the Supreme Court nominations of Ruth Bader Ginsburg and Stephen Breyer. In at least one instance, President Clinton nominated an appellate court judge recommended by a Republican Senator, despite objections from progressive groups....

Overall, although not a single Clinton-nominated appeals judge was voted down by the Senate, blue slip and related delays and blockades meant that the Senate approved only 61% of President Clinton's appellate court nominees, compared with 87% of those nominated by President Reagan. In 1999-2000, 19 out of 32 Clinton appeals court nominees — roughly 60% — were blocked from receiving a vote.

The GOP started dismantling this process--whereby many senators block judges long before they get to committee, let alone to the full Senate--in 2001.  First, Bush ended an Eisenhower-era practice of using the American Bar Association's pre-nomination screening of judicial candidates.  These guided senators about the nominee's qualifications.  At the same time, Bush quit alerting Democrats of his proposed nominees.  The first some heard of the nominees was in press reports.  Significantly, Democrats no longer had the power to stop a judicial nominee from his own state with which s/he disagreed. 

Bush's new process meant that there were no longer any means for Democrats to prevent a judge from being nominated.  With no external measure for judging the qualifications of a judge, nominations became more highly politicized.  As a result, of Bush has seen 204 of 214 of his judicial nominees confirmed.  (For those of you who aren't math geeks, that's better than 61%.)

The US Constitution asks that the President get advice and consent on judicial appointments.  For decades, Senators have understood the spirit of that language to include the minority.  Americans also  understand the need for the minority to exercise this Constitutional right.  And Democrats, when they were in power for much of the 20th Century, gave the Republican minority that right.  Now those Republicans want to seize the advantage of Congressional and Exective control to eliminate the minority's rights.  They've launched a full-frontal media assualt, marshaling God and country, to do it.

Fair enough, I guess.  It's politics, after all.  But don't be confused about the nuclear option--it's not the only option that the GOP have left to stop Democratic efforts to provide advice and consent.  It's the only one left they haven't already dismantled.  Bush, who has never had to veto any legislation, is batting .953 (not bad, as the old baseball owner would be quit to acknowledge).  He's going for a perfect .1000.  Frist complains that it's the Democrats who are subverting democracy by using the filibuster.  It's a mendacious complaint, and Frist knows it.  There's a subversion of democracy all right, and it's been under way for four years.  If Republicans dismantle the filibuster, they will have accomplished it.

  • Webster (unverified)

    This whole debate really goes back almost 20 years - to Bork's nomination. The throwbacks from the Reagan administration are more upset about not getting what tey wanted there than really appointing those justices.

    On another note...

    What would be interesting is a study of the federal bench - of the 16 years of Republican presidencies vs. the 8 years of Democratic presidencies who really has control of the federal bench? If the concern is "activist judges" should they not look at themselves first and see that in appointing even "strict constructionalists" they do not always get the political result they want?

    Why? Because the law is not something that can easily be formed into the varying nature of political debate - and that is a good thing. The courts should not move as swiftly to change as the legislative branch.

    What the Republicans have done is try to directly change the internal dynamics of the court. Rather than take on the legal challenges to changing law - see how the NAACP and the ACLU have challenged death penalty cases or segregation as one example.

    That's the real problem, and why I hope that the Democrats and Republicans who want to see a fair-minded federal judiciary will not give into political opportunism.

    Over and out...

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    IF you haven't already contacted Smith's office- CALL CALL CALL. The vote may happen this week, so please make sure that Senator Smith hears from you.

    A press conference is being organized for tom. @ the Capital and there will be a rally Wednesday. Keep the pressure on!

  • Sid (unverified)

    I heard a funny little meme today: "It's not Christianity. It's Fristianity."

    A little humor for a very non-humorous situation ;-)

  • K. Sudbeck (unverified)

    Hypocrisy is what I would say for the this piece. Not that Gore, Clinton, Kerry or even Sharpton would ever use religion for their political means. Jeff had a pretty good debate that was defensible on the process, except for that first sentence in which the Democrat's hypocrisy on religon and the political machine jumps out at you. Both sides use it, so don't act like one is more innocent than the other. Now instead of thinking, hey Jeff has a great arguement I should consider his position. I am thinking what a buffoon, because his first sentence is mired in hypocrisy. Nice try, work on the credibility part next time.

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    K, it's even harder to take someone seriously whose version of dialogue is to call someone a buffoon. Nevertheless, in case the sentence wasn't clear, the "dragging religion into the middle of the fight" phrase referred to my interest in the debate, not my critique of the judicial nomination process. On the other hand since you brought it up, I'd like a single example of any sitting Democrat who has ever appeared in a church to rally votes from the faithful. Using the symbol and metaphor of religion is one thing (and you're right, ubiquitous), but overtly using your power as the Senate Majority Leader to bully Christians in their houses of worship is another.

    And that's not a liberal position, it's a Christian one.

  • Gregor (unverified)

    Maybe there should be a rule about how many times a candidate can be presented. The Adminstration is determined to seat some candidates and they just can't get enough lipstick on their pigs to make them look attractive to a fair process that would reflect "liberty and justice for all".

  • K. Sudbeck (unverified)

    Jeff, Yes, buffoon was a poor choice. But, in my circles it is a widely used word. Thank you for clarifying the position. I want to say Sharpton, but he is not sitting anywhere. So will have to do some research. Are you protecting the process or the party? Because the Democrats made 4 rule changes on Judicial Nominations and attempted to change the filibuster rules when they were the majority party during the Clinton Administration. (Paraphrased: Sen Hatch, CSPAN 27Apr05) So to say that the Republicans are the only party attempting or have attempted to dismantle the minority party’s protections is disingenuous. I will concede that to dismantle these protections are wrong. But, it’s politics, after all. The National Council of Churches(NCC), an interesting choice. My counter is to say that Dr Dobson's Focus on the Family reflects a sound Christian position and perspective. The NCC are to the extreme left whereas Focus on the Family is on the right. At least Dr Dobson's writings reflect sound Christian doctrine, although his politics may be over the top. At least, he doesn't funnel money to the hands of Communist guerrillas, which the NCC has a habit of doing. I'll take the overt position vice the covert position.

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    Well, let's deal with the judiciary first. The examples everyone wants to use involve the Reagan appointments. A poor analogue because Reagan faced a Democratic Congress. A better choice is FDR, who like Bush had a favorable Congress and who was criticized as having packed the courts. But did he?

    Seven of Roosevelt's nine nominees were so popular they were confirmed by a voice vote. The remaining two--the controversial ones, Black and Douglas—were confirmed by votes of sixty-three to sixteen and sixty-two to four ( cite). In other words, they weren't really that controversial after all.

    But Bush wants to forward nominees so radical that they garner none to almost none of the opposition party's support. In order to accomplish that, the GOP had to dismantle all the precursor protections so that they can get an up or down vote. Simply put, Bush's effort to pack the courts with radicals is without historical precedent.

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    And then on to religion (after some delay). I'll wait to see if you can find any precedent in politics that precedes what Frist did last week. Until you do, I'll stick with my argument that it was a shocking, wildly inappropriate use of power.

    As to the NCC, I believe you display your own biases more than the NCC's. Quoting a freeper as evidence that it "supports" Cuba? Gotta do better than that. Furthermore, when you characterize Dobson as fairly mainstream and the Presbyterians, Baptists, Episcopalians, Lutherans, etc. (36 mainstream member communions) as "extreme left," you broadcast your own bias.

  • K. Sudbeck (unverified)

    Jeff, Here is what I desire of Judicial appointments: "My understanding was that the Supreme Court was ultimately the arbiter of whether the "will of the people" as expressed via the Legislature was consistent with the fundamental structure of government as defined by the Constitution.

    If not, then the law is overturned. And if that is truly unacceptable to "the people", then they have the ultimate recourse of amending the Constitution as needed.

    Now, this is not to argue that the Supreme Court has never overstepped its bounds.

    It's just to say that the obligation of the Supreme Court is to the Constitution, not "The People"." Posted by David Wright Apr 27, 2005.

    So if you are saying that the President is packing the court by submitting for appointment, judges whose obligation is to the Consititution. Than, yes I support it. I don't think that is a radical idea. I do not support Judges who feel it is their obligation to pander to the mainstream or use foreign/international law. That is not their obligation. Justice Priscilla Owen(Texas Supreme Court) and Justice Janice Brown (California Supreme Court), are conservative on their views of the law in the same manner as Justice Scalia. So what in these two Justice's backgrounds would you consider radical? You have stated that the administration is nominated radical judges. So, how are they radical? I would say the radical part is that a black women, who grew up in the segregated south isn't a liberal Democrat. Maybe that is the real issue.

  • K. Sudbeck (unverified)

    Jeff, I will have to concede what Frist has done, because I really don't like it either. But, I am also being lazy about looking up the issue. Since I inherently agree. On the point of the NCC, although I picked the most anti-NCC reference, it doesn't change their stripes. Now for my bias, I am a Presbyterian and I still don't approve of the NCC's liberal position. My wife is a Methodist, she doesn't approve either. We have almost left both denominations because of positions they(Methodists and Presbyterians) have taken that are not based on doctrine. So I didn't fall into your assumed fundamentalist category. My Minister and I go around on some of these topics, as he is a bit more liberal than I. But, I still go to his church. So won't concede my position on the NCC. I will state that I erred on the first post as I attacked you vice your ideas(opinions). So, I will get back on the straight and narrow on that in the future.

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    K, I wasn't assuming anything about your religion. My background is in religion, and I learned when I was 19 that assumptions there quickly get you into hot water.

    I prefer to think of theologies as non-political (which is itself and extreme view these days). While religious theology may be "conservative" or "liberal," this has nothing to do with political definitions--it's the degree to which a doctrine remains orthodox and "fundamental"--in the case of Christianity, this usually means whether Biblical interpretations are literal or not.

    Presbyterians aren't fundamentalists. They think about Biblical text in the cultural context in which it was written, who it was written by, and whom it was written to. Other traditions look at the language alone. But in either case, the motivation isn't a political one, it's religous: both are trying to understand the transcendent meaning of the word of God.

    From my perspective, any time a religion offers an opinion on a political issue, it has strayed from its central concern. Whatever authority religions have in interpreting the word of God are lost when they try to dictate public policy. My view on this point is, ironically enough, actually a deeply conservative one.

  • K. Sudbeck (unverified)
    <h2>Well Jeff, it appears I concur with you on your viewpoint of religion and politics. Look forward to more discussions.</h2>

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