Qualified Conservatives or Judicial Fanatics?

OR "Too Late to be Reasonable"
OR "Accepting Defeat By The Old Double-Standard"
OR "Near Victory is NOT the Time to Compromise"

USA TODAY has published an opinion of the judicial nomination "mess" that we find our nation in today. The magazine suggests a very reasonable solution...one that all reasonable politicians and citizens should applaud. Except for one problem. Democratic members of the Senate have never operated in this reasonable way and have created a situation in which the reasonable way for the Republican majority to respond is with force in order to rectify the imbalance the Democrats have created. To follow the "reasonable" course suggested by USA TODAY would be to allow a double-standard to set the terms of Republican behavior and thereby accept defeat in this judicial nomination fight.

If the following paragraphs I will quote the article and follow-up with a short observation on each point.

Qualified conservatives or judicial fanatics?
May 15, 2005 in USA TODAY

To their supporters, they are a group of all-American success stories: a sharecropper's daughter, a senator's son, a brilliant female law student — able lawyers and jurists who teach Sunday school, clean up national parks and do other good works in their spare time. To their critics, they are seven judicial fanatics, a gang that threatens to rewrite established law on everything from abortion to the environment to gay rights.

President Bush's controversial nominees to the federal appeals courts are the focus of a bitter partisan fight likely to come to a head in Washington this week.

I am always suspicious of the word "partisan," but okay. So far the article is basically balanced.

Republicans, led by Majority Leader Bill Frist and pressured by religious conservatives, are threatening to blow up the Senate's rules to break a Democratic filibuster of the disputed seven. Democrats say they'd respond to this "nuclear option" by throwing roadblocks in front of other Senate business.

Senator Frist is not being "pressured" by religious conservatives! He is being supported and cheered on. Big difference. Frist is running and all we are trying to do is block for him. "Blow up?" How about an accurate word that is not so emotionally charged and does not overstate the case, such as "alter." This amounts to USA TODAY urging the gullible and the liberals to fight. After all, no reasonable person wants to "blow up" the Senate rules!

Amid all the wrangling, little attention has been given to the nominees themselves, who deserve to be treated and evaluated as individuals, not as partisan caricatures in a dress rehearsal for the fight over the next Supreme Court nominee.

Good statement. Only omits two words: "by liberals." The correct statement would read, "...little attention has been given BY LIBERALS to the nominees themselves...."

The seven:

• Janice Rogers Brown. An Alabama sharecropper's daughter, she became the first black woman on the California Supreme Court. Critics view her as a conservative activist who ignores established law in favor of her political views. She has supported limits on abortion rights and corporate liability, opposed affirmative action and attacked the propriety of taxing the affluent to provide benefits for the poor.

Here begins the double-standard. It is not okay for conservatives to ignore "established law," but it is okay for liberal activist judges to avoid established law. Only by avoiding established law did we end up with Roe v. Wade.

The courts are now building a precedent for using all kinds of non-established laws to interpret the U. S. Constitution. Gary Bauer writes, "In the recent Supreme Court decision to overturn laws permitting the executions of 16- and 17-year-old killers, Justice Anthony Kennedy signaled clearly that the court would increasingly look abroad for guidance in interpreting our Constitution.

"He points out that the court is building a tradition of referring "to the laws of other countries and to international authorities as instructive for its interpretation" of the Constitution. In fact, five justices spent five pages referencing international law in their opinion.

"Unfortunately, this isn't just one renegade case:

• In Lawrence v. Texas (2003), the majority opinion was guided by the rulings of the European Court of Human Rights. In fact, Kennedy said that overturning a prior decision upholding sodomy laws was necessary because it was devoid of any reliance on the views of a "wider civilization."

• In their decision to uphold affirmative action at the University of Michigan Law School, Justices Stephen Breyer and Ruth Bader Ginsburg prominently cited a United Nations' treaty — the Convention on the Elimination of All Forms of Discrimination against Women — even though for more than 20 years, the U.S. Senate has refused to ratify the treaty.

"In fact, in many of its highest-profile cases, the court has cited rulings from nations and international institutions as diverse as the U.N., India, Jamaica, and even that model of justice, Zimbabwe."

• Priscilla Owen. She was first in her law school class and achieved the highest score on the Texas bar exam. Critics call her an out-of-bounds ultraconservative, pointing to her rulings against consumers, working people and minors who want abortions. Attorney General Alberto Gonzales, then a fellow member of the Texas Supreme Court, said one opinion she joined amounted to "an unconscionable act of judicial activism."

Double standard. Conservative judges cannot commit "judicial activism," but liberal judges can. Conservative judges cannot act on their beliefs, but liberal judges can. Why are conservative judges considered to be "out-of-bounds?" Guess who set the boundaries?

• William Pryor. A former Alabama attorney general, Pryor is already an appeals court judge by temporary appointment. Critics have objected to his earlier comments and writings on abortion, separation of church and state, the voting-rights law and gays. He called the Supreme Court's 1973 Roe v. Wade abortion decision an abomination and attacked a 2003 gay-rights decision as giving the green light to bestiality, incest and pedophilia. Defenders note he defied right-wing pressure and upheld the law in cases involving the Ten Commandments and Terri Schiavo's feeding tube.

How much more even-handed can a judge be? He makes everyone mad!

• William Myers. A successful Washington lawyer, he's never been a judge and has little courtroom experience. But critics' primary concern is his record as a lobbyist for grazing and mining interests. They see him as hostile to environmental protections, health and safety regulations and the legal doctrine of privacy, cornerstone for protection of abortion rights. The American Bar Association gave him its lowest passing rating.

If Mr. Myers doesn't know the law, I might be against him too. However, note that his lack of legal experience isn't the liberals' main objection!

• Richard Griffin, David McKeague and Henry Saad. The three lower-court judges are pawns in a fight over federal judgeships from Michigan that goes back to the Clinton administration. All have clearly conservative records, but none has provoked the level of concern voiced about the others.

No comment.

So who should be confirmed? The Constitution gives the Senate joint responsibility, with the president, for the selection of judges. The standard should be whether a nominee's legal philosophy is within the broad mainstream of established law. Even Democratic leaders concede that at least two of the disputed seven (Griffin and McKeague) meet that minimal test. The records of some of the others, notably Brown and Owen, are more problematic, particularly in their willingness to challenge settled law.

Wait a minute! Who establishes the definition of "main stream?" And who established the main stream itself? This is NOT a reasonable test. It is also a double-standard. Roe v. Wade was not mainstream nor was the 2003 gay rights decision referenced above in the Pryor discussion.

Republicans are insisting on the right to confirm judges by a bare majority, 51 votes. To do that, they propose to outlaw use of the filibuster, under which 60 votes are required to end debate and force a decision.

Wrong again. This one almost sounded reasonable to me. Republicans are insisting on the right to vote for the nominees. Nothing more. We are NOT insisting on a right to confirm the nominees. That would be ridiculous.

In our view, a qualified nominee within the judicial mainstream ought to be able to attract at least a handful of Democratic or independent votes, in addition to the 55 Republican votes. That is not an unreasonable standard for lifetime appointees whose rulings often establish important precedents.

Way too late to be reasonable. And I don't buy the "mainstream" standard at all.

Ramming nominations through the Senate on party-line votes would worsen Congress' image and the poisonous atmosphere in Washington. Worse, it would undermine confidence in the independence of the courts — particularly if judges were seen as imposing their religious or political beliefs on others.

Taking there sentences one by one: (1) Liberals have already poisoned the atmosphere. We are just breathing it. (2) Conservative confidence in the courts could not be lower. (3) Judges are already imposing their religious and political beliefs on others.

In the name of the public interest, the Senate should find a compromise. That begins with Democrats accepting qualified conservative nominees. But it also includes Republicans not sticking doggedly by all nominees, regardless of concerns they may raise.

In whose interest, did you say? The public's? That is almost funny. You know that if the liberal media is recommending a compromise, it is because they know the Republicans have the upper hand. It would be foolish for Republicans to compromise at this point. Republicans must be dogged because that has been the attitude of the liberal activist judges and their supporters. Now that we are about to win a big round, the liberals implore us to be reasonable. They play for keeps when they are in power, and so must we.  ¶ 6:08 PM|