The Right's Judicial Juggernaut
All judicial selection contains an element of mystery, like a crapshoot. Nobody expected a Republican governor from California named Earl Warren to lead a unanimous Supreme Court to rule public school segregation unconstitutional. Nobody expected Hugo Black to rise above his origins in the Klan to become a liberal on race. Who knew that David Souter would turn out to be a fair and balanced jurist? (Ted Kennedy says his vote against confirming Souter is one of his biggest regrets in forty years in the Senate.)
Perhaps Miguel Estrada is not a clone of Clarence Thomas. But by choosing to wear a mask, by keeping his memos secret, by choosing to hide his views from the Hispanic Caucus, he feeds suspicion and apprehension. The burden is on Estrada--since he has never been a judge--to explain himself before the Judiciary Committee. He can answer questions honestly, without saying how he might rule in particular cases.
The modern benchmark for challenging judicial nominees based on their ideology is the speech Ted Kennedy delivered on the Senate floor just a few hours after Ronald Reagan nominated Robert Bork for the Supreme Court in July 1987. "Robert Bork's America," Kennedy warned, "is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is--and is often the only--protector of the individual rights that are at the heart of our democracy."
Kennedy was criticized by those who would like Supreme Court nominations to be polite, academic debates about original intent and states' rights. But it required honest passion to mobilize the civil rights and women's organizations, the AFL-CIO and the black mayors and clergy. Bork was rejected by the Senate 58 to 42, and this saved legal abortion in America when it was in jeopardy. President Reagan picked Anthony Kennedy to take Bork's place, and Justice Kennedy has accepted Roe v. Wade as settled law.
The right wing now claims that Bork's defeat was the beginning of "the politics of personal destruction," as Bork himself put it. But the struggle over Bork's nomination was totally about ideas, not personal flaws. The hearings turned on Bork's ideology about free speech, race, equal protection, due process, abortion, privacy and the role of judicial precedent. Bork shot himself in the head when he said, in response to a question from Senator Specter, that under his theory of the Constitution there was no sound basis for the 1954 Court decision ordering school desegregation in the District of Columbia.
Republicans are now accusing Senate Democrats of "obstructionism" for rejecting several nominees and carefully researching the views of others. They are trying to make it seem un-American to oppose, or investigate, a President's nomination to the federal bench--even though they have done it with vicious regularity themselves, to Ronnie White, Peter Edelman, Jorge Rangel, Enrique Moreno and many others. But public confrontations over judicial nominations go back to the birth of the Republic. In 1795 the Senate defeated George Washington's nominee to be Chief Justice, John Rutledge, over his criticism of the Jay treaty. During America's first century, one of every four Supreme Court nominees was rejected by the Senate. The Founding Fathers gave the Senate the power of advise and consent for judicial nominees for sound reasons involving checks and balances among the branches of government that are elected and appointed.
Applying Herman Melville's "No! in thunder" to the extremist nominees for lifetime appointments is as American as baseball, the blues and the Constitution itself.