A few hours after Miguel Estrada withdrew his name for a judgeship on the Court of Appeals for the Washington, DC, Circuit, a leading Senate liberal was asked about the meaning of the two-year fight. “Estrada was a sacrificial lamb,” this senator, who had helped slaughter him, said. “The White House wants the fights as much as they want the judges. This is partly about Karl Rove thinking these judicial fights will help get out the vote from the Republican Party’s base next year. We keep getting sent these nonmainstream judicial nominees as part of a political strategy to excite the Christian right and the antiabortion fanatics.”
The next day Nan Aron, the president of the liberal Alliance for Justice, said almost the same thing about the vote on Estrada, whose refusal to disclose his beliefs or his memos angered members of the Senate Judiciary Committee. “This is base politics for Bush,” she said. “He will use the bad judges we stop as a wedge issue next year. They want martyrs. They also want extreme judges to remake America through the federal judiciary. Karl Rove sees this as a win-win situation for the White House.”
But Bush and Rove may be miscalculating. There is no evidence the prolonged conflict over Estrada’s nomination penetrated the consciousness of the Latino voters the GOP is trying to woo.
Meanwhile, Senate liberals who opposed Estrada and William Pryor of Alabama, another pending Bush nominee, are being attacked as “anti-Catholic.” A group called the Committee for Justice, chaired by C. Boyden Gray, counsel to Bush Senior, aired commercials in Maine and Rhode Island that showed a locked courthouse door and a sign reading, Catholics Need Not Apply. This slander has also been insinuated by Senator Orrin Hatch (a Mormon) and Senator Jeff Sessions (a Methodist). Boyden Gray is an Episcopalian. Four of the five most liberal members of the Judiciary Committee are Catholics: Ted Kennedy, Patrick Leahy, Joe Biden and Richard Durbin. In New York, the leader of the Conservative Party, Mike Long, has openly accused Senator Charles Schumer of “anti-Catholic bias.”
This sort of nativist religious warfare is creating its own backlash. Even the right-wing New York Post published a column by Eric Fettmann on August 13 defending Schumer and rebuking Long. But similar gambits have proved successful in the past. In the 1980s Sessions, then an Alabama chief federal prosecutor, was rejected for a federal judgeship because of his fanatical views. He used this martyrdom at the hands of “liberals” to excite the Christian right and get elected to the Senate. Pryor is Alabama’s current attorney general; his nomination will be filibustered, and he may think his defeat will propel him, like Sessions, into the Senate.
The opposition to Pryor began over his calling Roe v. Wade “the worst abomination of constitutional law in our history” and ending a speech with a prayer for “no more Souters”–a blast at Republican Supreme Court moderate David Souter. But Judiciary Committee Democrats are now probing Pryor’s fundraising role with the Republican Attorneys General Association, of which he is a founder and past president. RAGA raised $424,000 from tobacco and other corporations regulated by these attorneys general, which was then transferred to the Republican National Committee, a subsidiary of which donated $100,000 to Pryor’s campaign for attorney general.
The Republican charges of “obstructionism” contrast with the fact that Democrats have confirmed 145 out of 149 Bush nominees (compared with the Republicans’ record of preventing fifty-four Clinton nominees from even getting a hearing or a vote). And hints from Senators Bill Frist and Rick Santorum about changing the rules governing filibusters are just more raw meat for the base: If the GOP can’t muster sixty votes to stop a filibuster, it can’t get the votes to tinker with the Senate’s historic rules.
With the Democrats unified, and with the Senate divided 51- 48-1, more judicial wars seem inevitable. But the liberal senators really have no choice if they take seriously the need to seek philosophical balance on the courts and to avoid biased ideologues–thus, their opposition to Estrada, Pryor, Priscilla Owen (a Rove protégée from Texas) and the recently nominated Brett Kavanaugh, a principal author of Ken Starr’s final report.
The 2004 presidential election will be the true test of Rove’s polarization premise. It will be up to the Democrats’ base of minorities, unions and women to show they care as deeply about abortion rights, the Bill of Rights, privacy and separation of church and state as the radical right cares about recriminalizing abortion, making America a Christian nation and rolling back affirmative action.
