Why did Democrats risk the GOP's wrath?

Because the Republicans' court nominees are to the right of Genghis Khan.

Published November 14, 2003 12:37AM (EST)

Republicans in Congress effectively shut down the federal government in 1995 in an ideological dispute with President Clinton over Medicare and budget deficits. Eight years later, they are shutting down the U.S. Senate in a dispute over jobs for three people.

Beginning Wednesday night, Republicans stopped all business in the Senate -- including consideration of several overdue appropriations bills -- to launch a 30-hour "Justice for Judges Marathon." Their plan is to focus attention on what they deem the Democrats' "unconscionable" obstruction of George W. Bush's judicial nominees. The problem is, Senate Democrats have already confirmed 168 of Bush's nominees and are currently blocking votes on just three others: Priscilla Owen, Charles Pickering and William Pryor.

If Republicans want to have a national debate centered around these three nominees, Democrats and their allies are saying: "Bring 'em on."

"Rome is burning -- the economy is tanking, the so-called 'recovery' has no jobs in it, Iraq is a mess, Osama bin Laden hasn't been caught, and what's their response?" asks Terry O'Neill, the vice president for the National Organization for Women. "To stage this 30-hour marathon so that they can get some misogynist extremists on the federal bench."

Of all the judicial nominees Bush has put before the Senate over the last three years, O'Neill characterized Owen, Pickering and Pryor as among "the worst of the bad." She and other feminist leaders participated in a conference call with reporters Wednesday to discuss Bush's judicial nominees. Their view: Democrats have been, if anything, overly solicitous of Bush's nominees. And by choosing to highlight the Senate spat over judicial nominees now -- when just these three are being blocked -- Republicans may be picking their battle at exactly the wrong time.

"There's quite a significant chance that the strategy of the Republican leadership will backfire to the extent that the attention to this issue now gets people to focus on the very extreme records of these nominees," said Judy Appelbaum, legal director for the National Women's Law Center. "This is not going to sit well with people."

Owen, Pickering and Pryor are all hard-right conservatives and should provide ready evidence for a Democratic argument that Bush is attempting to pack the federal courts with right-wing ideologues hostile to reproductive rights, affirmative action and other issues important not just to progressive Americans, but to many in the mainstream as well.

President Bush nominated Alabama Attorney General William Pryor to the federal bench earlier this year. In the months since, Pryor has become a poster boy for Democrats' claims that Bush is packing the courts. An adamant opponent of abortion rights, Pryor has described Jan. 22, 1973 -- the day the Supreme Court handed down its decision in Roe vs. Wade as "the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children." As a leader of the federalist movement, he has argued for repeal of parts of the Voting Rights Act and the Violence Against Women Act and claimed that Congress lacks power to enforce the Clean Water Act.

When the U.S. Supreme Court delayed an execution in Alabama, Pryor dissed the court as "nine octogenarian lawyers." When the Supreme Court decided Bush vs. Gore, Pryor declared that he was happy that the case was decided 5-4 because it underscored for Bush the risks of appointing justices like David Souter, who was appointed by Bush's father but has become the pariah for right-wingers who believe they were duped by his "stealth" nomination.

The Senate Judiciary Committee sent Pryor's nomination to the full Senate in July, but Democrats have thus far blocked it from coming up for a vote.

The two other nominees now being blocked -- Priscilla Owen and Charles Pickering -- are both undergoing their second round in the Senate. The Judiciary Committee rejected both of them when the Democrats controlled the Senate, but Bush re-nominated them both in January after Republicans gained the majority.

Owen is currently a justice on the Texas Supreme Court. There, she has been a staunch foe of abortion rights. Texas law allows a minor to obtain an abortion without first notifying her parents if she can show that she is mature and "sufficiently well informed" to make the decision on her own; if telling a parent would not be in her best interest; or if notifying a parent might lead to physical, sexual or emotional abuse.

In applying this law, Owen has -- in every case that has come before her -- found some reason that the minor cannot choose to have an abortion without notifying a parent first. In one case, she engaged in an ad hominem rant against the minor, suggesting that the young woman simply wished to avoid telling her parents about her choice so that she could continue to receive car payments, college tuition and living expenses from them. In another opinion, Owen said a minor should be denied an abortion without parental notification because she had not shown that she had sought advice from "a source who was inclined to thoroughly explore with her the adverse emotional and psychological impact that an abortion may have." One of Owen's then-colleagues on the court, current White House counsel Alberto Gonzales, referred to one of her abortion rulings as "an unconscionable act of judicial activism."

Pickering's nomination is somewhat less contentious. He was first appointed to the U.S. District Court by Bush's father. George W. Bush sought to elevate him to a seat on the U.S. Court of Appeals for the Fifth Circuit -- apparently as a personal favor to Mississippi Sen. Trent Lott -- but the Senate Judiciary Committee voted down his nomination last spring amid allegations that he had supported segregation as a young man and later lobbied for a light sentence for man convicted in a cross-burning incident. Pickering dismissed the cross-burning as a "drunken prank."

U.S. Sen. Rick Santorum of Pennsylvania, who is directing the Republican protest, did not return Salon's call for comment.

But an aide to a senior Senate Democrat said that Republicans will find themselves on the wrong side of the majority of Americans if they focus their debate on "judicial activists" like Owen, Pickering and Pryor. Another said that the Democrats are comfortable that they've got a "good story to tell," both on the Owen, Pickering and Pryor nominations and Bush nominees more generally.

David Carle, press secretary for Sen. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, said Democrats would be wearing buttons during the marathon that read "98 percent," signifying the number of Bush nominees that the Senate has already confirmed. In addition to Owen, Pickering and Pryor, Democrats have blocked a vote on the nomination of Miguel Estrada, a Bush nominee who eventually withdrew his nomination in frustration. Democrats are likely to block the nominations of Judge Carolyn Kuhl to the U.S. Court of Appeals for the Ninth Circuit and California Supreme Court Justice Janice Rogers Brown to the U.S. Court of Appeals for the District of Columbia Circuit, but the Republicans have not yet taken the procedural steps necessary to trigger the Democrats' blockage.

Carle said that the 168-4 approval rate compares favorably with the Republicans' treatment of President Clinton's judicial nominees. According to statistics compiled by Leahy's office, 62 of Clinton's nominees were blocked while 248 of them were confirmed.

For the right wing, the comparative numbers are irrelevant. "The tit for tat has to stop somewhere," said Kay Daly, president of Coalition for a Fair Judiciary, a group of 75 groups galvanized by what they considered the rough treatment meted out to Attorney General John Ashcroft during his confirmation hearings. Daly mocked the Democratic explanation that only a few Bush nominees have been blocked. "I love the notion that 'only' a few have been blocked," she said Wednesday. "It's like saying, 'Over here there are five little children who have head colds but there are only two who have malaria.' The fact is that you can't be just a little bit unconstitutional."

For Daly, there's a distinction in the tactics used to block the nominees. Clinton nominees frequently never got a committee vote. Daly calls that a "procedural" issue. The Bush nominees, by contrast, are getting voted out of committee and then blocked by filibuster. That, Daly said, "puts the Constitution in jeopardy."

With the two sides so deeply entrenched, it's not likely that the Republicans' marathon is going to change anyone's minds. To the contrary, Nan Aron, president of the Alliance for Justice, said the all-nighter may "exacerbate the bitterness that already exits between the two parties on judgeships." But changed minds might not really be the point of the exercise anyway. "This is a way for the Republicans to remind the right wing of their party that they still care about their issues," Aron said. Equating the marathon to Bush's signing of an abortion bill that the administration likely knows is unconstitutional, Aron said the Republican effort is "solely designed to energize the base in the same way that signing legislation last week to ban so-called "partial birth" abortions was.

The risk, of course, is that the Republicans marginalize themselves in the eyes of mainstream voters while appealing to the base. While the 1995 government shutdown centered around a high-octane philosophical debate between Bill Clinton and Newt Gingrich, this Republican move may seem petty if Democrats can convince voters that it's all about just a handful of nominees. Going into the marathon, that certainly seemed to be the Democrats' plan: The Democrats' leader in the Senate, Tom Daschle of South Dakota, told reporters he was going to focus not on a few judges looking for new jobs, but on the "3 million jobs that we've lost over the course of the last three years under this administration's economic policies."

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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Abortion Democratic Party George W. Bush