The Right's Judicial Juggernaut
The Bush-Rove judicial strategy is the repayment of the huge political debt that Bush owes the Christian right for the way it slimed and savaged John McCain during the South Carolina primary in 2000. (Schumer told me that shortly after his Times Op-Ed was published, McCain took him aside and warned him, as a friend, that the fanatic fundamentalists would now be coming after him, because right-wing judges are what they expect from the Bush presidency.)
This South Carolina debt may illuminate why Bush has been so much more conservative as a President than he was as governor of Texas. It also explains why one of the heroes of the Christian right--John Ashcroft--got the surprise appointment to be Attorney General. Bush is satisfying social conservatives and fundamentalists like Gary Bauer, Jerry Falwell and Pat Robertson just by nominating rigid zealots like Pickering, the antichoice former oil and gas lawyer Priscilla Owen, former Strom Thurmond counsel Dennis Shedd, Jesse Helms protégé Terrence Boyle, Professor Michael McConnell and Miguel Estrada. Even if some of them are denied confirmation, Bush is keeping the far right happy just by sending up their names. Bush has nothing to lose in Rove's way of thinking. Rove believes that every under-45 ideologue who does get through will write the future and tilt a circuit.
Schumer is essentially a moderate liberal playing defense, trying to slow down the ideological and generational packing of the circuit courts. He cares deeply about the courts, and he was an eyewitness to the Clarence Thomas impersonation of an open mind. And to Bush v. Gore. And to the Senate's mugging of Ronnie White.
Clarence Thomas swore on a Bible he would speak the truth. He then told the Senate Judiciary Committee during his 1991 confirmation hearing that he never once thought about abortion his entire adult life, that he never even discussed Roe v. Wade with another member of the human species. He assured the Senate that he had no preconceived ideas about abortion or the right of privacy. It did not alter Thomas's preposterous story that his own sister had had an abortion. Or that he had given a well-known speech to the Heritage Foundation condemning abortion rights. Or that he was a student at Yale Law School in 1973, when the Roe v. Wade decision was announced, and that ruling was debated all over the campus.
Thomas withheld the truth, concealed his ideology and was narrowly confirmed, 52 to 48. Then, in 1992, Justice Thomas joined Rehnquist and Scalia's dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey, in which they argued that Roe v. Wade should have been overturned in that case.
Some senators are still suffering from a malady I have diagnosed as Thomas Trauma. They still resent being lied to by a Supreme Court nominee who is under oath. They still resent being played for fools. These senators, now in recovery from Thomas Trauma, are determined to pin down all future nominees on whether they believe the Constitution protects the right of choice under the right of privacy. Freshman Senator Maria Cantwell of Washington did a spectacular cross-examination of the slithery Judge Pickering on this point, when Pickering claimed, "My personal view is immaterial and irrelevant."
Republican senators, who now whine about using ideology as one measure of a nominee, employed their own ideological jihad to block Peter Edelman and Ronnie White from district court judgeships during Clinton's presidency. Edelman is so judicious and fair-minded, he seems born to be a judge. Even Orrin Hatch eventually agreed not to oppose him. But when a few right-wing journalists and think tanks demonized Edelman, Clinton withdrew his nomination.