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The Judiciary Wars | The Nation

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The Judiciary Wars

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Senate Democrats, who were so divided on the war and tax cuts, are holding together impressively to stop the Worst of the Worst of President Bush's judicial nominees. Filibusters against Miguel Estrada and Priscilla Owen have prevailed, and every Democrat on the Judiciary Committee recently voted against Carolyn Kuhl, setting up another likely filibuster if this antichoice nominee's candidacy reaches the floor.

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Jack Newfield
Jack Newfield is a veteran New York political reporter and a senior fellow at the Nation Institute. He is the author of...

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Bob Dylan probably had no idea how much the times really were a' changin'.

On the rise of the "New Left" movement represented by organizations like Students for a Democratic Society, Student Nonviolent Coordinating Committee, and the Northern Student Movement, organizations whose ideologies could not be pinned to liberal sects of the past.

A recognition has dawned on almost all the Senate Democrats that Bush is trying to remake America through his lifetime appointments to the federal bench. He is attempting to pack the courts with zealots and activists who are not impartial and who will legislate from the bench. The Senate Democrats have finally realized that this is an assault on their electoral base--women, minorities, workers, consumers--and even conservatives like Fritz Hollings and Mary Landrieu are holding fast on the filibuster. Democratic minority leader Tom Daschle has made the rejection of extremist judges a test of his leadership. Before the filibuster began against Estrada, Daschle told his conference, "We are in this through the tenth cloture vote and the twentieth cloture vote," signaling he would resign as leader if there were defections in the midst of battle.

Nan Aron, the president of the Alliance for Justice, which monitors judicial nominations, credits the tenacity of Daschle, along with Charles Schumer, Patrick Leahy and Ted Kennedy, with making the filibuster strategy work. "Schumer is a tiger," she says. "There is leadership here."

These judicial fights are in effect spring training for the coming battle over Supreme Court vacancies expected this summer. The Democrats are sending Bush the message--in neon--that they have sufficient cohesion to stop any nominees in the image of Clarence Thomas or Antonin Scalia.

Daschle has pointed out that the Democrats have failed to confirm only two of Bush's 126 judicial nominees so far (several others are still under consideration). Republicans blocked sixty-five of Bill Clinton's nominees--including fifty who were never even given the courtesy of a hearing. The Democrats have been shrewdly selective, choosing to oppose only the most fanatical ideologues like Kuhl, Charles Pickering, James Leon Holmes, Owen and Estrada.

Bush and Senate majority leader Bill Frist keep seeking roll calls on Estrada, cynically thinking they can gain Hispanic votes next year by creating a Hispanic martyr and accusing liberals of racial prejudice. But Estrada, who was born in Honduras, remains unknown in Latino communities; and both the Puerto Rican and Mexican legal defense funds oppose him. The Republicans are also crying "politics of personal destruction." But they forget that the modern judicial wars began when Republicans successfully filibustered against LBJ's nomination of Abe Fortas for Chief Justice in 1968, and when Representative Gerald Ford launched an effort to impeach Justice William O. Douglas in 1970, making the baseless charge of organized crime ties. Robert Bork was defeated in 1987, but that fight was strictly over his ideas, not any alleged personal vices.

Several Democrats think a speech by biographer Robert Caro at a Senate retreat last year helped give Daschle a renewed sense of the Senate's role in history as an instrument of social justice. "Caro's speech and his book on LBJ definitely influenced Daschle," Schumer says. "But so did losing control of the Senate. That made the filibuster relevant as a tactic." The first two chapters of Caro's Master of the Senate invoke the power and mystique of this coequal branch of government and show how a few "eloquent, courageous senators, men of principles and ideals," like Paul Douglas, Herbert Lehman and Hubert Humphrey, became "icons in the fight for social justice."

Republican frustration is now mounting. Recently Frist launched an assault on the filibuster itself, calling it unconstitutional. But the filibuster dates back to 1806, and its mandate is in the Senate's own Rule 22. In 1917 the Senate adopted the cloture rule, requiring a two-thirds vote to end debate, later reduced to sixty votes. It would require sixty-seven votes to modify Rule 22, and fifty-five is the most the GOP has mustered to shut down the Estrada filibuster. Some GOP senators are threatening a court case to challenge the filibuster's constitutionality. But Article I, Section 5 of the Constitution clearly gives each house of Congress the power to "determine the rules of its proceedings." The GOP chair of the Judiciary Committee, Orrin Hatch, is even considering sending Kuhl's nomination to the floor. This would violate the Senate's long tradition of courtesy that says if both home-state senators oppose a nominee, that nomination is dead. Both Barbara Boxer and Dianne Feinstein oppose Kuhl, a California resident and judge.

These judgeship wars are about things that matter profoundly--abortion, affirmative action, civil liberties, equal rights, court-packing, extremism and the Constitution's granting the Senate the power of "advice and consent" on judicial appointments. With Republicans controlling the presidency and both houses of Congress, the courts are the last flood wall against repression and the erosion of rights.

During America's first century, the Senate blocked one out of every four presidential nominees for the Supreme Court. The Constitution made the Senate a coequal branch of government and gave senators longer terms in office than the President. Senators are just doing their job by weeding out unfit judges, selected for their ideology and party loyalty. Perhaps Robert Caro will one day write a new chapter, recalling a season when some modern senators had principles they fought for to the end.

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