The Right's Judicial Juggernaut
On June 26, 2001, Senator Charles Schumer of New York published an astonishing Op-Ed column in the New York Times in which he argued that ideology should be considered as one factor in the confirmation of federal judges. The column was astonishing not for its sentiments, which had been expressed by others, but for its blunt frankness, and for the fact that it was coming from a member of the Senate Judiciary Committee, which was about to pass judgment on scores of the President's choices for the federal bench.
"The not-so-dirty little secret of the Senate," Schumer wrote, "is that we do consider ideology, but privately.... If the President uses ideology in deciding whom to nominate to the bench, the Senate, as part of its responsibility to advise and consent, should do the same in deciding whom to confirm. Pretending that ideology doesn't matter--or, even worse, doesn't exist--is exactly the opposite of what the Senate should do."
Schumer's thinking should not be misunderstood. He is not advocating that ideology be the sole standard for judging nominees--only that it be discussed openly and honestly. Schumer says that other factors are equally important to evaluate, including integrity, temperament, intellectual excellence and "the racial, ethnic, gender and experiential diversity of the particular bench." Schumer is not proposing any litmus test, which is what he was falsely accused of by a New York Post editorial and by Paul Gigot in the Wall Street Journal. In his Times Op-Ed, Schumer wrote that one of the factors in confirmation decisions should be "the composition of the courts at the time of nomination"--a reference to the philosophical balance on each of the thirteen courts of appeal and the Supreme Court.
In the confirmation process, ideology should matter in direct proportion to how much it mattered in the President's thinking when he made the nomination. Since Bush said during the campaign that Antonin Scalia and Clarence Thomas are his favorite judges, this sent a vivid message about his judicial role models, and how his mind works.
But the ambition of this article is larger than just Schumer's point about ideology. It is also about the President's determination to keep nominating extremists to pack the federal bench. It is about the Senate Judiciary Committee's constitutional responsibility to advise and consent on judges, and not be a rubber stamp. It is about the hypocrisy of Republican senators who blocked some superb nominees during the Clinton years because they didn't approve of their ideas--and who now cry foul when the same scrutiny is applied to their choices. And it is about the coming war over the nomination of Miguel Estrada to the US Court of Appeals for the DC Circuit, and the emerging opposition--from former co-workers as well as Latinos--to this clone of Clarence Thomas.
Schumer's position was already shared by Judiciary Committee Democrats Ted Kennedy and Richard Durbin. Now the committee has rejected both Priscilla Owen and Charles Pickering for the Court of Appeals for the Fifth Circuit, suggesting that Schumer's premise that ideology matters has found enough converts to prevail--at least on some days.
Pickering of Mississippi was easy to oppose, since he was hostile to voting rights and civil rights, and was even troubled by the well-settled legal principle of "one person, one vote." But getting all ten Democrats, now in the majority on the Judiciary Committee, to be synchronized on a regular basis is a tricky and fragile thing. Dianne Feinstein is a loner who is a reliable liberal vote only when abortion is at issue. The quirky campaign finance reformer Russell Feingold cast the deciding vote to confirm John Ashcroft as Attorney General within the committee; his Democratic colleagues are now counting on the power of atonement. Joe Biden argued vigorously all through the 1990s that ideology should not matter in evaluating judicial nominees. The Judiciary Committee chair, Patrick Leahy, is well liked and a solid liberal vote. But he is sometimes a little gun-shy about partisan conflicts. He can overreact to attacks from President Bush or from Karl Rove, the Dr. Frankenstein in the judge-making laboratory, mixing test tubes of politics, polls and demographics.
The problem now is that the Democrats have already approved all of Bush's moderate nominees--and more than seventy nominees in all, including fourteen appeals court judges. They did this trying to convince Bush to send them more moderates. But most of those who have not yet received a hearing are rigid zealots, without doubts.
Biden, Herbert Kohl and presidential contender John Edwards did vote to confirm D. Brooks Smith for the Court of Appeals for the Third Circuit even though Smith is just as much of an absolutist as Pickering. Smith had been reversed more than fifty times by the circuit court he was joining, mostly because of his rulings against workers and consumers. The Times editorialized against his nomination, pointing out that Judge Smith "has taken an extremely narrow view of Congress's power to legislate under the Commerce Clause, which has often been used to pass laws protecting civil rights."
But Smith was sponsored by the only "moderate" Republican on the committee, Arlen Specter of Pennsylvania. And Specter persuaded his close friend Biden, from adjacent Delaware, to vote for Smith. At that point, with the fight lost, the other Democrats on the committee decided to let Kohl and Edwards off the hook. Edwards of North Carolina had voted against Pickering of Mississippi, and the right wing in his home state had been attacking him ever since. Since blocking Smith was a lost cause, because of Biden's defection, the other Democrats felt sympathy for Edwards, who was getting whipsawed between his national ambitions and his home-state politics.
By giving Edwards a pass on Smith, the Kennedy-Schumer-Durbin Democrats hope to save Edwards for the imminent confrontation over Miguel Estrada's nomination by Bush for the now-evenly-balanced DC Circuit Court of Appeals. Hearings begin on September 26.
A Democratic staffer on the Judiciary Committee told me, "Estrada is 40, and if he makes it to the circuit, then he will be Bush's first Supreme Court nominee. He could be on the Supreme Court for thirty years and do a lot of damage. We have to stop him now. It may come down to how Biden and Feinstein vote in the committee...Estrada is hard right in an emotional way. But because he is not a sitting judge, there is no paper trail on him, no published opinions. And because he is Hispanic [an immigrant from Honduras], Bush is counting on some liberals not to oppose him."
Conservatives acted shocked and outraged by Schumer's advocacy of openly making ideology one consideration to prevent judicial extremism from spreading. But all Schumer is trying to do is maintain some balance on the country's federal appeals courts, which Bush and Rove are trying to pack with Scalia echoes and Thomas clones.
Nan Aron, president of the Alliance for Justice, a liberal group that monitors judicial selections, told me, "The extreme right already controls seven of the thirteen circuit appeals courts. The DC Circuit is the crown jewel of the federal system, and it is now evenly balanced. This is the court that is often the final decision-maker on labor, civil liberties and environmental cases. This is the court that sent both Thomas and Scalia to the Supreme Court." She added, "Estrada is a very partisan Republican. We know he helped prepare the Bush briefs in the Florida recount Supreme Court case. Normally, appeals court nominees have real prestige and a history of influential writing and thinking. Estrada has none of this."
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.
Ronnie White was the first black member of the Supreme Court of Missouri, and a first-rate jurist on the merits. But John Ashcroft, then the Republican senator from Missouri, launched a personal crusade to block White's confirmation. Ashcroft called White "pro-criminal" and soft on the death penalty, and labeled him an "activist judge."
The facts are that White had voted to affirm the death penalty in forty-one of fifty-eight cases. And Missouri's biggest law enforcement organization, the Fraternal Order of Police, had urged White's confirmation. But Ashcroft lined up all but one Republican in the Senate to vote against White, who was defeated on a 54-to-45 party-line vote. It was naked ideology--and perhaps racism.
During Clinton's second term, Senate Republicans, who were then in the majority, blocked the appointments of three highly qualified Hispanic judges. Enrique Moreno and Jorge Rangel were blocked from the Fifth Circuit, and Christine Arguello was blocked from the Tenth Circuit, by the denial of even a hearing. Republican senators said they opposed Moreno because he had no judicial experience--but neither does Estrada. Even though they killed the appointments of three excellent Hispanic nominees, Republican Senators Trent Lott, Rick Santorum and Hatch have accused the Democrats of racism for not scheduling a hearing on Estrada fast enough.
Of course, the greatest spectacle of thinly disguised ideology remains the five Republicans on the Supreme Court who appointed Bush the President, in the way they decided Bush v. Gore. The cowardice of these five judges is now legendary.
Another factor lurking in the background here is that President Clinton's two Supreme Court appointments--Ruth Bader Ginsburg and Stephen Breyer--have not been effective counterweights to the ideological zeal of Scalia and Thomas. They have not been visionary liberals in the tradition of William Brennan, William Douglas, Thurgood Marshall or Louis Brandeis. They have been less bold and lucid than John Paul Stevens, a Gerald Ford nominee. As Schumer put it to me in an interview, "I wouldn't object to one Scalia on the Court, if there was also one Brennan. It's about balance. All the extremists are on the right now."
Miguel Estrada, a partner in the Washington law firm of Gibson, Dunn & Crutcher, will turn 41 on September 25. His mentors in Washington's clubby world of conservative lawyers have been Kenneth Starr and Theodore Olson; it was Olson who argued the Florida recount case for Bush in the Supreme Court, with Estrada helping him. Estrada has published no notable academic writing or books. Schumer told me, "Estrada is like a Stealth missile--with a nose cone--coming out of the right wing's deepest silo."
What should be alarming is that Bush picked Estrada over his own close friend and White House counsel Alberto Gonzales. Gonzales is a pragmatic moderate, close in thinking to Sandra Day O'Connor, though not necessarily Supreme Court material himself.
The fundamentalists and social conservatives did not trust Gonzales to oppose abortion. In two years on the Texas Supreme Court, Gonzales published twenty-one opinions. They reveal a respect for precedent and legislative intent, and reluctance to legislate from the bench. In one ruling, known as Jane Doe 10, Gonzales was part of the court's majority that reversed a lower court's ruling and permitted a 17-year-old to have an abortion without parental notification. The parents had told the court they did not believe in abortion. In a nasty dissent in this case, Priscilla Owen attacked the majority for "irresponsibility" and doubted their commitment to the rule of law. Gonzales wrote that Owen's dissent was "an unconscionable act of judicial activism."
This intended rebuke was apparently inspiring music to Bush. He then nominated Owen for the federal appeals court and passed over Gonzales for Estrada. Gonzales's views on parental notification convinced the Christian right and Karl Rove that he would never vote to repeal Roe v. Wade and that he would probably not participate in any nibbling away at abortion rights. So Estrada now has the inside track to become the first Hispanic on the Supreme Court.
In pushing Estrada, Bush seems to be using his father's formula with Clarence Thomas. He is willing to compromise on demographic diversity in order to avoid compromising on ideological diversity. Bush the Elder picked Thomas because he was an African-American opposed to affirmative action, because he was willing to mask his thinking and because he was young enough to be a predictable right-wing vote on every legal issue for a generation. The risk to America is that Estrada might be another Thomas--an absolutist in the guise of an electoral wedge and demographic token.
From 1993 to 1996, Paul Bender was Principal Deputy Solicitor General of the United States and Estrada's direct supervisor in the office of Solicitor General. The two men worked together closely. Bender, a former law clerk to Justice Felix Frankfurter and Learned Hand and currently a professor at Arizona State Law School, was quoted in the Los Angeles Times this past spring as saying that Estrada is so "ideologically driven that he couldn't be trusted to state the law in a fair, neutral way.... Miguel is smart and charming, but he is a right-wing ideologue. He has an agenda that's similar to Clarence Thomas'." A year earlier Bender told the Washington Post, "I think [Estrada] lacks judgment and he is too much of an ideologue to be an appeals court judge."
In a telephone interview Bender, a registered Independent, told me, "I am not on any personal crusade against Miguel. But I still hold the same opinion about his lack of qualifications that I gave the Washington Post last year, when he was nominated. Miguel has no experience and extreme conservative views. He did not hide those views from me when I was his supervisor. But I don't want to go beyond that, or make this seem personal."
Perhaps the most damaging evidence against Estrada comes from two lawyers he interviewed for Supreme Court clerkships. Both were unwilling to be identified by name for fear of reprisals. The first told me: "Since I knew Miguel, I went to him to help me get a Supreme Court clerkship. I knew he was screening candidates for Justice Kennedy. Miguel told me, 'No way. You're way too liberal.' I felt he was definitely submitting me to an ideological litmus test, and I am a moderate Democrat. When I asked him why I was being ruled out without even an interview, Miguel told me his job was to prevent liberal clerks from being hired. He told me he was screening out liberals because a liberal clerk had influenced Justice Kennedy to side with the majority and write a pro-gay-rights decision in a case known as Romer v. Evans, which struck down a Colorado statute that discriminated against gays and lesbians."
I also interviewed a young law professor and former Justice Department attorney who told me a very similar story. "I was a clerk for an appeals court judge," the professor told me, "and my judge called Justice Kennedy recommending me for a clerkship with him. Justice Kennedy then called me and said I had made the first cut and would soon be called for an interview. I was then interviewed by Miguel Estrada and another lawyer. Estrada asked most of the questions. He asked me a lot of unfair, ideological questions, a lot about the death penalty, which I told him I thought was immoral. I felt I was being subjected to an ideological litmus test. Estrada was being obnoxious. He was acting like it was his job to weed out liberal influences on Justice Kennedy. I was never called back by anyone."
Attorney General Ashcroft has refused to give the Judiciary Committee any of Estrada's memorandums written while he worked in the SG's office--even though such material was released on Bork and Rehnquist. But one instructive brief has surfaced in United Mine Workers of America v. Bagwell. Estrada wrote an amicus brief arguing that $52 million in contempt fines against the union should stand--despite the fact that they were imposed without allowing the union a jury trial on the facts. The Supreme Court ultimately rejected Estrada's thinking, ruling that the imposition of fines without a jury trial violated the Constitution. Estrada misrepresented the legal precedents to fit his anti-union bias--exactly what Professor Bender says is his disqualifying attribute to be an appellate judge. Like the defeated Pickering and Owen, Estrada seems prone to ignore the text and intent of laws that contradict his closed mind.
The Bush political operation has been working overtime trying to generate at least some token Latino support for Estrada. In June the eighteen-member Hispanic Caucus of the Congress--all Democrats--had a closed meeting with Estrada to which the White House reluctantly agreed. "I asked him a very specific question about affirmative action and minority businesses," says Nydia Velázquez, the five-term Congresswoman from Brooklyn, "and he just would not say anything meaningful about it. And then he was quite insensitive about immigrant rights--and he is an immigrant himself! Estrada has no understanding of the needs and aspirations of the Latino community. He has no history of effort in trying to help other Hispanics." She adds, "I don't think he is going to make a good impression on the Senate. He does not answer questions. And if you ask him again, he becomes abrasive."
Seven-term Congressman José Serrano came away with an even harsher view. "Estrada seems baffled," Serrano told me, "about why we would even ask him questions about justice and empowerment. He wouldn't even acknowledge there has been discrimination against Hispanics in America. He seemed lost, like he had never been involved in any struggle to better the lives of Hispanics. He had no comprehension of Latino history and suffering."
As a result of this performance, Velázquez and Serrano say, the Hispanic Caucus is sending a letter to Senator Leahy opposing Estrada's confirmation. Perhaps even more significant, the Puerto Rican Legal Defense and Education Fund has also voted to formally oppose Estrada's confirmation. The fund's early decision may now influence other Latino civil rights organizations like the Mexican American Legal Defense and Education Fund, the National Council of La Raza and the National Puerto Rican Coalition.
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.