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New Song Movement
Karen lee Wald
Jamin b. Raskin
Richard alan Leach
Slippin' & Slidin'
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Jamin B. Raskin
Last year, in Bush v. Gore, Republicans on the Supreme Court packed the White House. This year, in Bush v. Everybody, Republicans in the White House plan to pack the courts. Fifty Senate Democrats are the last line of defense against right-wing control of every nook and cranny of federal government. In January, Senate Democrats followed Vice- President Gore's lead and let George W. Bush take office without objecting to the Rehnquist Court's manipulation of the Elec- toral College. But 42 Democratic Senators opposed the attorney general nomination of John Ashcroft, Confederate sympathizer and killer of Ronnie White's Missouri judgeship nomination. Now the question is whether Democrats will take a stand when Bush nominates for lifetime judicial tenure at least 99 “strict constructionists” to follow in the path of his favorite Justices, Antonin Scalia and Clarence Thomas.
If they take their advise- and-consent responsibilities seriously, Democrats will find themselves empowered by the historical and political context to stop anyone to the jurisprudential right of the Court's Republican centrists: President Ford's nominee John Paul Stevens and Bush pere's nominee David Souter. The big picture here is the essential illegitimacy of the Bush presidency. George W. eked out a dubious four-vote majority in the Electoral College after eking out a dubious one-vote majority on the Supreme Court. But after spending unprecedented sums of money, he lost the popular election by more than a half-million votes.
Historically, presidents who achieved office without being elected—Bush certainly falls into this category—have seen more than 50 percent of their Supreme Court nominees rejected. This accidental president's designs on justice are especially vulnerable because his two main opponents ran against the social authoritarianism of the Rehnquist Court and pledged to appoint jurists in the manner of the late Justices Thurgood Marshall and William Brennan. Together, Al Gore and Ralph Nader captured 52 percent of the vote, a fair estimate of the staunch pro-choice, pro-civil rights majority in the country.
The specific institutional context for the looming struggle is the Senate Republicans' dirty low-intensity war over the last eight years against President Clinton's judicial nominees. When Clinton took office in 1993, Republican judges had clear majorities or pluralities on all 13 federal appeals courts. When he left office in January, dozens of his nominations were twisting in the wind and Republican judges still outright controlled 8 of the 13 federal circuits and, in 2 others (the 3rd and 10th), split evenly with Democrats so that, with two vacancies in each, are poised to be in the majority again.
Last year, the Senate confirmed just 8 out of 26 of Clinton's federal appeals court nominations. After July, the Republican-run Senate Judiciary Committee conducted no hearings and confirmed not a single judge. (When George W.'s father sent nominees to the Democratic-run Senate in the comparable period of 1996, the Judiciary Committee voted to confirm 29 of his judges.)
The Republican campaign to stop Clinton's nominees, a mostly moderate group, was low-road politics all the way. Nominees faced Kafkaesque waits for committee hearings and votes, political vilification and effective pocket- vetoes by homestate Republican Senators exercising their “blue slip” powers under Judiciary Committee Chair Orrin Hatch's rules. One of Clinton's luckier nominees, Ninth Circuit Court of Appeals Judge Richard Paez, then a District Judge in Salt Lake City, waited more than 1,500 days to be confirmed, enduring 3 Judiciary Committee hearings, countless “soft-on-crime” insinuations, and a brief filibuster by the unhinged New Hampshire Senator Bob Smith. But dozens of nominees never made it through the Republican quicksand:
** President Clinton tried to nominate four African-Americans to the all-white and far-right Fourth Circuit Court of Appeals: Judge James Beaty Jr. of the Middle District of North Carolina (who waited five years in vain for a hearing), Judge James Wynn of the North Carolina Court of Appeals, Judge Andre Davis of the U.S. District Court for the Central District of Maryland, and Judge Roger Gregory from Virginia. Each time the nominee ran into a blockade by Senators Jesse Helms and Lauch Faircloth, who claimed that the court needed no more judges despite the fact that it had five vacancies, including two”judicial emergencies,” and one seat that has been open for a decade. In frustration, Clinton finally named Judge Gregory to the Fourth Circuit as a recess appointment on December 27, 2000.
** Republican hardball tactics have systematically slowed the desegregation of the judiciary. After eight years in office, as the Alliance for Justice observes, President Clinton could only increase the number of African American judges on federal appeals courts by one over their numbers at the end of Jimmy Carter's presidency. There are still no African-American judges on the First and Tenth Circuits and no Latino judges on five federal circuits.
** Despite pleas from the Sixth Circuit's Chief Judge that his court was “hurting badly” and the workload situation “rapidly deteriorating,” despite widespread protests by the Michigan press, Republican Senator Spencer Abraham repeatedly buried the appeals court nominations of long-time Michigan state judge Helene White, who saw her nomination lapse after waiting a record four years, and the talented Kathleen McRee- Lewis, who would have been the first African-American woman ever named to the Sixth Circuit.
** James Klein, chief of the appellate division of the Public Defender Service in Washington, was nominated as a U.S. District Judge for the District of Columbia after being selected by a bipartisan nominating commission, backed by prosecutors, and sponsored by the District's non-voting Delegate Eleanor Holmes Norton. He waited in vain for more than three years to get a hearing in the Senate Judiciary Committee. When his nomination expired, no Republican ever said that public defenders were unfit for service as federal judges but the message was plain enough.
Like Klein, 41 other nominees to the bench saw their chances expire with Clinton's departure and an astounding 38 of these never even received a hearing in the Judiciary Committee. There are now 99 vacancies in federal judgeships: 31 on the courts of appeal, 67 district judgeships, and one on the Court of International Trade.
Most Democratic Senators have their own horror stories about the petty tactics of Republican colleagues stonewalling their home- state judicial choices, especially women and minorities, who were disproportionately blocked. (Even when their nominations went through, women and minorities waited on average nearly 100 days longer to be confirmed.) Judiciary Committee Democrats have now expressed outrage about Senator Hatch's current move to change the “blue slip” policy so that a state's Republican Senator could push through a judicial nomination even if the state's Democratic Senator objected. It was precisely this two-Senator “blue slip” concordance policy that the Republicans used to block Clinton's choices.
The personal pique of individual Senate Democrats will help stop the coming steamroller but, as we learned during the national debate about the nomination of Robert Bork to the Supreme Court, progressives need substantive constitutional arguments to overcome the media's brain-dead dogma that the only thing that counts is “competence.” There are three critical messages to carry across America to mobilize opposition to the Scalia and Thomas clones waiting to occupy chambers in a federal courthouse near you:
(1) We won't go back. The Federalist Society and hard-right groups driving the Bush judicial effort want to turn the clock back on almost every major civil rights and civil liberties decision of the last century. Conservatives have targeted Roe v. Wade (1973) and Casey v. Planned Parenthood (1992), which upheld basic abortion rights; Bakke v. Regents of University of California (1978), which gave public universities the right to consider racial and diversity a positive factor in admissions; Miranda v. Arizona (1966), which required officers to give constitutional warnings to criminal suspects; Texas v. Johnson (1989), which denied government the power to prosecute and jail citizens for politically incorrect uses of their flags; and Romer v. Evans (1996), which struck down laws that selectively forbid civil rights protections for gays and lesbians. Democrats should confirm no judge or justice who seeks to reverse basic rights of the people defined in the constitutional jurisprudence of the 20th century.
(2) Right-wing Republicans are using the Federal courts for partisan purposes. The partisan stench of Bush v. Gore still hangs over the land and people sense that Repub- lican judges are acting in concert with Republican operatives to lock up the government. Today, Bush has terminated the traditional judicial screening role of the American Bar Association, a centrist but not partisan institution, replacing it with the inside moves of the right- wing Federalist Society. Bush's judicial selection team is dominated by former Scalia and Thomas clerks and young Republican lawyer-operatives who cut their teeth on the Starr investigation, Clinton impeachment, and Florida anti- vote count litigation. The national groups we depend on—the Alliance for Justice, the NAACP, People for the American Way, the ACLU, the Leadership Conference for Civil Rights—must mobilize America to stop any more partisan Republican activists from donning black robes.
(3) Republicans should not profit from their own wrongful obstruction of judicial nominees for the last eight years and should not be permitted to change the rules now. The blue-slip rule must be defended at all costs and America must be reminded of the Republicans' recent outrageous partisan politicization of the confirmation process. If I had $5 million, I would spend it on a television campaign focusing on John Ash- croft's blockade and character assassination of Judge Ronnie White and other sordid episodes of Senators blocking off the courthouse door. I would advocate that Democrats should agree to no hearings for judicial nominees until those left hanging from the Clinton administration are renominated and given hearings now. Senators Orrin Hatch and Jesse Helms should not get to sabotage a Democratic president's selections and then claim a divine right to handpick judges to the vacancies caused by their obstructionism.
Ultimately, the politics of judicial nominations are unpredictable and intensely idiosyncratic. The likely nomination of the first Latino to the Supreme Court—either White House Counsel Alberto Gonzales, who delighted the Federalist Society with his booting of the ABA or anti-choice Fifth Circuit judge Emilio Garza—will create political challenges for liberals who are too often confused by the cynical identity politics of the Establishment. It will be easier to unify against the nomination of extreme right-wingers, like 4th Circuit Judge Michael Luttig, a former Scalia clerk who is a civil rights and civil liberties nightmare. Another inviting target is 5th circuit Judge Edith Jones, who voted to uphold the execution of a man whose court-appointed lawyer slept through major parts of his trial and who ruled against a sexual harassment plaintiff who had been groped, grabbed, proposi- tioned, and humiliated at work. As the New York Times reported, when the plaintiff's lawyer mentioned that his client had objected when “one of the guys pinched her breast,” Judge Jones interjected: “Well, he apologized.”
There will, no doubt, be right-wing whining about “Bork- ing,” which essentially means a Senate Judiciary Committee hearing about—and serious national examination of—a judicial nominee's record and constitutional philosophy, something that dozens of lapsed Clinton nominees would have given their right arms to have enjoyed. But if conservatives are serious that Bork was handled unfairly, why doesn't President Bush nominate him to fill the next Supreme Court vacancy? He can then explain how he was misunderstood and why he has retreated from all of the confirmation-conversion positions he tried to convince us he held last time.
The conservative mantra is “no more Souters,” by which they mean a justice who will interpret the Constitution and not the Christian Coalition's Voter Guide. We must keep in mind Justice Scalia, the conservative fanatic and homophobe who has imitated Native American Indian speech in public and was the only justice to vote to keep women out of the Virginia Military Institute. Scalia was un- animously confirmed by the Senate, 98-0 in 1986. Not a single Democrat found anything askance there. Our slogan must be: No more Scalias; no more Thomases; no more O'Connors. This fight is for good. Republicans have set the table. Now let them dine at it. Z
Jamin B. Raskin is a professor of constitutional law at American University's Washington College of Law.