Courting Injustice

Jamin B. Raskin

Last year, in
Bush v. Gore
, Republicans on the Supreme Court packed the White House.
This year, in Bush v. Everybody, Republicans in the White House plan to
pack the courts. Fifty Senate Democrats are the last line of defense against
right-wing control of every nook and cranny of federal government. In January,
Senate Democrats followed Vice- President Gore’s lead and let George W. Bush
take office without objecting to the Rehnquist Court’s manipulation of the
Elec- toral College. But 42 Democratic Senators opposed the attorney general
nomination of John Ashcroft, Confederate sympathizer and killer of Ronnie
White’s Missouri judgeship nomination. Now the question is whether Democrats
will take a stand when Bush nominates for lifetime judicial tenure at least 99
“strict constructionists” to follow in the path of his favorite Justices,
Antonin Scalia and Clarence Thomas.

If they take
their advise- and-consent responsibilities seriously, Democrats will find
themselves empowered by the historical and political context to stop anyone to
the jurisprudential right of the Court’s Republican centrists: President
Ford’s nominee John Paul Stevens and Bush pere’s nominee David Souter. The big
picture here is the essential illegitimacy of the Bush presidency. George W.
eked out a dubious four-vote majority in the Electoral College after eking out
a dubious one-vote majority on the Supreme Court. But after spending
unprecedented sums of money, he lost the popular election by more than a
half-million votes.

presidents who achieved office without being elected—Bush certainly falls into
this category—have seen more than 50 percent of their Supreme Court nominees
rejected. This accidental president’s designs on justice are especially
vulnerable because his two main opponents ran against the social
authoritarianism of the Rehnquist Court and pledged to appoint jurists in the
manner of the late Justices Thurgood Marshall and William Brennan. Together,
Al Gore and Ralph Nader captured 52 percent of the vote, a fair estimate of
the staunch pro-choice, pro-civil rights majority in the country.

The specific
institutional context for the looming struggle is the Senate Republicans’
dirty low-intensity war over the last eight years against President Clinton’s
judicial nominees. When Clinton took office in 1993, Republican judges had
clear majorities or pluralities on all 13 federal appeals courts. When he left
office in January, dozens of his nominations were twisting in the wind and
Republican judges still outright controlled 8 of the 13 federal circuits and,
in 2 others (the 3rd and 10th), split evenly with Democrats so that, with two
vacancies in each, are poised to be in the majority again.

Last year, the
Senate confirmed just 8 out of 26 of Clinton’s federal appeals court
nominations. After July, the Republican-run Senate Judiciary Committee
conducted no hearings and confirmed not a single judge. (When George W.’s
father sent nominees to the Democratic-run Senate in the comparable period of
1996, the Judiciary Committee voted to confirm 29 of his judges.)

The Republican
campaign to stop Clinton’s nominees, a mostly moderate group, was low-road
politics all the way. Nominees faced Kafkaesque waits for committee hearings
and votes, political vilification and effective pocket- vetoes by homestate
Republican Senators exercising their “blue slip” powers under Judiciary
Committee Chair Orrin Hatch’s rules. One of Clinton’s luckier nominees, Ninth
Circuit Court of Appeals Judge Richard Paez, then a District Judge in Salt
Lake City, waited more than 1,500 days to be confirmed, enduring 3 Judiciary
Committee hearings, countless “soft-on-crime” insinuations, and a brief
filibuster by the unhinged New Hampshire Senator Bob Smith. But dozens of
nominees never made it through the Republican quicksand:

** President
Clinton tried to nominate four African-Americans to the all-white and
far-right Fourth Circuit Court of Appeals: Judge James Beaty Jr. of the Middle
District of North Carolina (who waited five years in vain for a hearing),
Judge James Wynn of the North Carolina Court of Appeals, Judge Andre Davis of
the U.S. District Court for the Central District of Maryland, and Judge Roger
Gregory from Virginia. Each time the nominee ran into a blockade by Senators
Jesse Helms and Lauch Faircloth, who claimed that the court needed no more
judges despite the fact that it had five vacancies, including two”judicial
emergencies,” and one seat that has been open for a decade. In frustration,
Clinton finally named Judge Gregory to the Fourth Circuit as a recess
appointment on December 27, 2000.

** Republican
hardball tactics have systematically slowed the desegregation of the
judiciary. After eight years in office, as the Alliance for Justice observes,
President Clinton could only increase the number of African American judges on
federal appeals courts by one over their numbers at the end of Jimmy
Carter’s presidency. There are still no African-American judges on the First
and Tenth Circuits and no Latino judges on five federal circuits.

** Despite
pleas from the Sixth Circuit’s Chief Judge that his court was “hurting badly”
and the workload situation “rapidly deteriorating,” despite widespread
protests by the Michigan press, Republican Senator Spencer Abraham repeatedly
buried the appeals court nominations of long-time Michigan state judge Helene
White, who saw her nomination lapse after waiting a record four years, and the
talented Kathleen McRee- Lewis, who would have been the first African-American
woman ever named to the Sixth Circuit.

** James Klein,
chief of the appellate division of the Public Defender Service in Washington,
was nominated as a U.S. District Judge for the District of Columbia after
being selected by a bipartisan nominating commission, backed by prosecutors,
and sponsored by the District’s non-voting Delegate Eleanor Holmes Norton. He
waited in vain for more than three years to get a hearing in the Senate
Judiciary Committee. When his nomination expired, no Republican ever said that
public defenders were unfit for service as federal judges but the message was
plain enough.

Like Klein, 41
other nominees to the bench saw their chances expire with Clinton’s departure
and an astounding 38 of these never even received a hearing in the Judiciary
Committee. There are now 99 vacancies in federal judgeships: 31 on the courts
of appeal, 67 district judgeships, and one on the Court of International

Most Democratic
Senators have their own horror stories about the petty tactics of Republican
colleagues stonewalling their home- state judicial choices, especially women
and minorities, who were disproportionately blocked. (Even when their
nominations went through, women and minorities waited on average nearly 100
days longer to be confirmed.) Judiciary Committee Democrats have now expressed
outrage about Senator Hatch’s current move to change the “blue slip” policy so
that a state’s Republican Senator could push through a judicial nomination
even if the state’s Democratic Senator objected. It was precisely this
two-Senator “blue slip” concordance policy that the Republicans used to block
Clinton’s choices.

The personal
pique of individual Senate Democrats will help stop the coming steamroller
but, as we learned during the national debate about the nomination of Robert
Bork to the Supreme Court, progressives need substantive constitutional
arguments to overcome the media’s brain-dead dogma that the only thing that
counts is “competence.” There are three critical messages to carry across
America to mobilize opposition to the Scalia and Thomas clones waiting to
occupy chambers in a federal courthouse near you:

(1) We won’t go
back. The Federalist Society and hard-right groups driving the Bush judicial
effort want to turn the clock back on almost every major civil rights and
civil liberties decision of the last century. Conservatives have targeted
Roe v. Wade
(1973) and Casey v. Planned Parenthood (1992), which
upheld basic abortion rights; Bakke v. Regents of University of California
(1978), which gave public universities the right to consider racial and
diversity a positive factor in admissions; Miranda v. Arizona (1966),
which required officers to give constitutional warnings to criminal suspects;
Texas v. Johnson (1989), which denied government the power to prosecute
and jail citizens for politically incorrect uses of their flags; and Romer
v. Evans
(1996), which struck down laws that selectively forbid civil
rights protections for gays and lesbians. Democrats should confirm no judge or
justice who seeks to reverse basic rights of the people defined in the
constitutional jurisprudence of the 20th century.

(2) Right-wing
Republicans are using the Federal courts for partisan purposes. The
partisan stench of Bush v. Gore still hangs over the land and people
sense that Repub- lican judges are acting in concert with Republican
operatives to lock up the government. Today, Bush has terminated the
traditional judicial screening role of the American Bar Association, a
centrist but not partisan institution, replacing it with the inside moves of
the right- wing Federalist Society. Bush’s judicial selection team is
dominated by former Scalia and Thomas clerks and young Republican
lawyer-operatives who cut their teeth on the Starr investigation, Clinton
impeachment, and Florida anti- vote count litigation. The national groups we
depend on—the Alliance for Justice, the NAACP, People for the American Way,
the ACLU, the Leadership Conference for Civil Rights—must mobilize America to
stop any more partisan Republican activists from donning black robes.

(3) Republicans
should not profit from their own wrongful obstruction of judicial nominees for
the last eight years and should not be permitted to change the rules now. The
blue-slip rule must be defended at all costs and America must be reminded of
the Republicans’ recent outrageous partisan politicization of the confirmation
process. If I had $5 million, I would spend it on a television campaign
focusing on John Ash- croft’s blockade and character assassination of Judge
Ronnie White and other sordid episodes of Senators blocking off the courthouse
door. I would advocate that Democrats should agree to no hearings for judicial
nominees until those left hanging from the Clinton administration are
renominated and given hearings now. Senators Orrin Hatch and Jesse Helms
should not get to sabotage a Democratic president’s selections and then claim
a divine right to handpick judges to the vacancies caused by their

Ultimately, the
politics of judicial nominations are unpredictable and intensely
idiosyncratic. The likely nomination of the first Latino to the Supreme
Court—either White House Counsel Alberto Gonzales, who delighted the
Federalist Society with his booting of the ABA or anti-choice Fifth Circuit
judge Emilio Garza—will create political challenges for liberals who are too
often confused by the cynical identity politics of the Establishment. It will
be easier to unify against the nomination of extreme right-wingers, like 4th
Circuit Judge Michael Luttig, a former Scalia clerk who is a civil rights and
civil liberties nightmare. Another inviting target is 5th circuit Judge Edith
Jones, who voted to uphold the execution of a man whose court-appointed lawyer
slept through major parts of his trial and who ruled against a sexual
harassment plaintiff who had been groped, grabbed, proposi- tioned, and
humiliated at work. As the New York Times reported, when the
plaintiff’s lawyer mentioned that his client had objected when “one of the
guys pinched her breast,” Judge Jones interjected: “Well, he apologized.”

There will, no
doubt, be right-wing whining about “Bork- ing,” which essentially means a
Senate Judiciary Committee hearing about—and serious national examination of—a
judicial nominee’s record and constitutional philosophy, something that dozens
of lapsed Clinton nominees would have given their right arms to have enjoyed.
But if conservatives are serious that Bork was handled unfairly, why doesn’t
President Bush nominate him to fill the next Supreme Court vacancy? He can
then explain how he was misunderstood and why he has retreated from all of the
confirmation-conversion positions he tried to convince us he held last time.

conservative mantra is “no more Souters,” by which they mean a justice who
will interpret the Constitution and not the Christian Coalition’s Voter Guide.
We must keep in mind Justice Scalia, the conservative fanatic and homophobe
who has imitated Native American Indian speech in public and was the only
justice to vote to keep women out of the Virginia Military Institute. Scalia
was un- animously confirmed by the Senate, 98-0 in 1986. Not a single Democrat
found anything askance there. Our slogan must be: No more Scalias; no more
Thomases; no more O’Connors. This fight is for good. Republicans have set the
table. Now let them dine at it.   Z

Jamin B. Raskin is a professor of constitutional law at American University’s
Washington College of Law.