Courting Disaster

"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." -- US Sen. Charles Schumer (D-N.Y.), New York Times, June 26, 2001

Christine Arguello, Ronnie White, Peter Edelman, Jorge Rangel, Enrique Moreno. All were nominated by the president to serve on the federal bench. All watched as their nominations were scuttled for ideological reasons.

And now there are Miguel Estrada and Michael McConnell nominated by President George W. Bush to the US Circuit Court of Appeals. (Confirmation hearings are taking place as I write this column.)

Like Arguello, White, Edelman, Rangel and Moreno, the nominees have the support of the American Bar Association. But that is where the similarities end. White, Edelman, Rangel and Moreno, nominated by then-President Bill Clinton, are liberals who met stiff opposition from conservative groups and Republicans. Their nominations ultimately failed -- Edelman's was pulled by President Clinton, White was defeated in a Senate vote and the nominations of the three Latino nominees were blocked from getting to the Senate floor.

And yet now, when the Democrats attempt to fulfill the Senate's responsibility in the confirmation process -- to provide advice and consent -- the GOP cries foul.

Jack Newfield, writing in The Nation, points out the hypocrisy of the GOP. "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," he wrote. "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."

As for White, the first black member of the Supreme Court of Missouri, he met staunch opposition from a home-state senator -- John Ashcroft, now the attorney general of the United States. Ashcroft, as Newfield points out, painted a distorted picture of White, calling him "pro-criminal" and an "activist judge" and saying he was not a strong enough supporter of the death penalty.

"The facts are that White had voted to affirm the death penalty in forty-one of fifty-eight cases," Newfield writes. "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."

So where does that leave us with the current nominees? The Senate should act as a counterweight when a president attempts to pack a court ideologically, especially if that ideology is out of step with the majority of Americans. It is the role of the Senate, basically, to "protect the people against their rulers," in the words of James Madison. The Senate has a responsibility to scrutinize the written and recorded record of any nominee to the federal bench -- including a nominee's positions on controversial issues such as abortion, gun control, state's rights and censorship. And it has the responsibility to find out how they would approach cases with long-term impacts on these issues.

It also is important to note the circumstances surrounding Bush's selection as president. He was not elected, but rather chosen by an ideologically tilted Supreme Court. He had the support of slightly less than half the voters and he is serving at a time of divided government, with a split Senate and a narrowly Republican House. He does not have the kind of mandate that Ronald Reagan had when he was in office.

The fact is, Bush is looking to appoint hard-right judges at all levels, with the ultimate goal being to shift the balance on the Supreme Court as far to the right as he can -- especially on abortion and states' rights issues. In McConnell and Estrada, he apparently has his men. They both oppose abortion rights and Mr. McConnell has criticized the Supreme Court's decision to allow the federal government to strip Bob Jones University of its tax-exempt status of Bob Jones University because of its policy forbidding interracial dating.

Estrada has no paper trail following him -- he has served primarily as an attorney and has done little writing on legal theory. However, some clues are available. For instance, Paul Bender, principal deputy solicitor general of the United States and Estrada's direct supervisor in the Office of Solicitor General, told Newfield that Estrada was not qualified to serve as a circuit court judge.

"Miguel has no experience and extreme conservative views," he said. "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."

The Washington Post disagrees. In September, it wrote separate editorials endorsing the nominees, saying their ideology should not be an issue, only their competence.

But ideology does matter. Philosophy does dictate how cases are judged.

As Clay Robison of the Houston Chronicle pointed out in July when writing about Priscilla Owen, a Bush nominee who was shot down by the Senate Judiciary Committee: "Justice isn't dispensed in a vacuum, and judges don't wear blindfolds. Even the most honest, conscientious judges are affected by their political views, and those views are molded by a number of factors, including life experiences, education, income level, partisan preferences, race and ethnicity."

Conservatives already control seven of the 13 circuit courts. The Supreme Court tilts to the right and has no effective liberal leadership aside from the 82-year-old John Paul Stevens -- the Clinton appointees, Ruth Bader Ginsberg and Stephen Beyer have been relative moderates -- and Stevens is expected to be one of the first to step down from the court during the Bush presidency.

That makes it even more important for progressives to convince Senate Democrats to do their job.

Hank Kalet is a poet and managing editor of the South Brunswick Post and the Cranbury Press. He can be reached via e-mail at

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