|During the last session of
Congress, the Democratically-controlled Senate Judiciary Committee
rejected the nominations of Priscilla Owen, an extremist Texas jurist,
and of Charles W. Pickering, who can charitably be described as holding
“controversial” racial stands. At the time, these rejections led
Republicans and conservatives to complain about the unfairness and
partisanship of the Democrats. Now, with the Republicans in control,
it’s a whole new ball game.
recall the Trent Lott affair of a couple of months ago, wherein the
former Republican Senate Leader was forced to step down following
inflammatory racial comments? Well, undaunted by either these rejections
or the racial undertones of the Trent Lott affair, last month, on the
opening day of the new Congress, President Bush re-nominated the whole
“lot” of his 31 judicial nominees who were rejected last year. Included
in the list were Owen and Pickering.
Apparently, the party of Abraham Lincoln just
doesn’t feel the same way about civil rights any more. Why else would
Bush re-nominate a man with a troubling and controversial history of
racial insensitivity? What kind of message does that send
African-Americans during Black History Month?
Unfortunately, the Democrats will now have to work
even harder to oppose these unsuitable, insensitive and extremist
nominees. This, in turn, will no doubt lead to more Republican charges
At best, these criticisms are disingenuous; at
worst, they are hypocritical and bring to mind a quote from John Kenneth
Galbraith that “Nothing is so admirable in politics as a short memory.”
I guess that the Republicans don’t recall their own conduct in the
Judiciary Committee when they controlled the Senate during the Clinton
Or, perhaps the late New York Herald Tribune
journalist Walter Lippman had it right when he suggested, “Brains, you
know, are suspect in the Republican Party.” So, let me provide my
Republican friends with some enlightenment.
For those who decry the “politics” of the judicial
nomination process, the truth is, political considerations were very
much intended by the founding fathers. The approval of federal judicial
nominees for lifetime tenure is, by its very nature, a political
process. Republicans complain that the debate over a judicial
candidate’s ideology should not be a part of the Senate’s consideration
process. If the President selects a well-qualified individual, they
argue, it is the role of the Senate to confirm that nominee. Nonsense.
The Constitution gives the Senate the role of advice and consent.
Alexander Hamilton laid it out clearly in the
Federalist Paper 77 when he said that the Senate’s job is to restrain
the President through its advice and consent responsibility. Where does
the Constitution say that the President can consider ideology but the
Senate cannot? Yet this very double standard is exactly what the
Republicans are suggesting.
The President may employ a litmus test to select
extremely conservative candidates, but the Senate is supposed to look no
further than a nominee’s legal qualifications. That simply makes no
sense. It would be an abdication of the Senate’s constitutional
The fact is, during the last Congress, the Senate
Judiciary Committee did its job, examining the records and
qualifications of the President’s nominees and overwhelmingly approving
most of them. At the time that the Owen nomination was considered, 81
nominees had been confirmed in the last 15 months, most of them
Despite what Republicans may now believe, it is
not the role of the Senate to rubber stamp the President’s nominees.
Despite a small number of Republican Congressional gains in the last
election, there is no mandate to skew the Courts to the right. Most
people want neither an overly liberal judiciary, nor an overly
conservative one. They want moderate, mainstream judges. The President
does not seem to understand this.
The Republicans, with their selective memory lapse
also forget that when they ran the Senate, they operated exactly the
same way in which they now accuse the Democrats of acting. During the
Clinton Administration, the Republican leadership left almost 60
judicial nominees languishing in Committee, without even the courtesy of
a hearing. Others got their hearings, but never had a chance at
confirmation, because the leadership would not call a vote on their
nominations. In fact, President Clinton tried twice to fill the very
same seat President Bush sought to fill with Priscilla Owen, but the
Republican Senate refused to consider his nominees.
If the President establishes ideological litmus
tests as a requirement for his judicial nominees, and if he selects
nominees based upon that litmus test, why are Senate Democrats wrong to
utilize similar litmus tests in evaluating those nominees?
If in fact, Republican conservatives opposed many
Democratic nominees because of their “judicial activism” (translation:
liberalism), how is that any different from conservative judicial
activists like Patricia Owen who are so ideologically driven they are
unable to set aside their personal beliefs to follow judicial precedent?
Right wing judicial activism and the willingness to ignore the plain
language and intent of laws to advance a personal political agenda is
equally offensive. That is why Patricia Owen was properly rejected by
While President Bush claims he wants to appoint
judges who uphold law and precedent, Owen ignored clear statutory
language and let her personal preferences dictate her rulings. She was
properly rejected for it. I only hope we can make it 0-2, when she comes
up for consideration again.
Perhaps if the Bush Administration were more
focused on picking distinguished jurists and less interested in
advancing a right-wing agenda with controversial or problematic people,
the process would be less contentious. Maybe the President should take
another look at the word “mainstream.”
February 3, 2003