April 30, 2005

The racial side of the filibuster controversy.

Lawprof Steven Calabresi has this piece in the new Weekly Standard:
Why are Senate Democrats so afraid of conservative judicial nominees who are African Americans, Hispanics, Catholics, and women? Because these Clarence Thomas nominees threaten to split the Democratic base by aligning conservative Republicans with conservative voices in the minority community and appealing to suburban women. The Democrats need Bush to nominate conservatives to the Supreme Court whom they can caricature and vilify, and it is much harder for them to do that if Bush nominates the judicial equivalent of a Condi Rice rather than a John Ashcroft.

Conservative African-American, Hispanic, Catholic, and female judicial candidates also drive the left-wing legal groups crazy because they expose those groups as not really speaking for minorities or women. They thus undermine the moral legitimacy of those groups and drive a wedge between the left-wing leadership of those groups and the members they falsely claim to represent.

Take Janice Rogers Brown, who won reelection to her state supreme court seat with a stunning 76 percent of the vote in one of the bluest of the blue states, California. Or take Priscilla Owen, who won reelection to the Texas Supreme Court with a staggering 84 percent of the vote in Texas. It is Brown and Owen who represent mainstream opinion in this country--not the Senate Democrats who have been using the filibuster to block their confirmation to the federal bench. If Brown or Owen were nominated to the Supreme Court, the record suggests she would win the ensuing national contest for hearts and minds. Best of all for conservatives, Senate Democrats would be forced by their left-wing interest groups to go down fighting these popular minority and female nominees. At a bare minimum, Republican Senate candidates would acquire a great issue for 2006.

Thus the driving force behind the Democrats' filibuster of conservative minorities and women is political--driven by a desire to protect the party's advantage with minority and women voters and cater to left-wing interest groups. Democrats are also driven in part by their odd belief that "real" African Americans and Hispanics and women cannot be conservative.
These are strong charges. The other side of this coin is that Bush may nominate minorities precisely to create this dissonance for the Democrats. There is no end to the complexity of the two parties' use of race as they fight for power. It's a shame, but it's reality, and we should be ready to look at all sides of it. Calabresi is participating in the struggle from one side. He has some good points, of course, but he's not standing back and trying to describe the whole complex struggle.


lawrence krubner said...

What's strange is that the Democrats have yet to use similar strategies that might create dissonance among conservatives. At some point I imagine there will emerge a faction on the left that is focused on localism and therefore uncomfortable with federal power. During the 1970s Marxists like Murray Bookin used to write about radical muncipalism and the possibilities for progressive change at the local level.

While the far left often feels as much contempt for the Democrats as it does for the Republicans, I imagine some day there will emerge a faction within the Democratic camp that can make the serious case for progressive reform at the state level. That would create dissonance for the conservative movement - how would they deal with a bunch of states-rights progressives? The conservatives would lose their ability to caricature the Democrats as a party that wants to concentrate all power in DC.

Jim Gust said...

i expect Bush to nominate Clarence Thomas to Chief Justice for exactly these reasons. And the Democrats fear this possiblity. Harry Reid tried to head it off by attacking Thomas' judicial opinions (while offering respect for Scalia's) on Meet the Press a few months back. When pressed, Reid was unable to identify any Thomas opinion that supported his criticism. James Taranto on OpinionJournal covered it quite a bit at the time.

Ann Althouse said...

Jim: I blogged about that here and here

Lawrence: I think some of this dissonance is being created in framing issues of gay rights, medical marijuana, and the right to die in federalism terms. And back a few years, attacks on Bush v. Gore were framed as a failure to defer to the state courts -- whatever happened to federalism? etc.

vnjagvet said...

I am not sure the Democratic leadership consciously articulated the concerns identified by Calabresi's article when it developed its strategy and tactics in the current dispute over the federal judiciary.

But I do believe Calabresi accurately describes the subconscious concerns which impel the seemingly irrational and vehement opposition to jurists like Rogers Brown and Owens, whose actual jurisprudence is relatively crafts(wo)manlike and is clearly supported by the vast majorities of their respective constituencies.

It is difficult to support objectively the contention that either of them is "out of the mainstream" of judges in California or Texas, the states in which they serve (which happen to be the largest of the Blue and Red states, respectively) or of judges in the Circuits to which each was appointed.

I say this as a litigator who has practiced for 40 years all over the country in many jurisdictions (including California and Texas), who has argued before the Second, Fourth, Fifth, and Eleventh Circuits, and who has read a number of their opinions relevant to cases I was handling.

Moreover, as far as I am aware, neither has exhibited conduct in their personal lives which in the past has marked the conduct of judges who have failed to achieve favorable consent in the Senate.

Why either should be subjected to the need of a supermajority to achieve consent has not been explained rationally by any Senator who is opposed to their appointments that I have seen (and I have followed this dispute rather closely).

Thus, only the subconscious motivations of the opposition (including some of those identified in the subject article)seem to make sense.

I hope you or some of your readers can explain some of the objective reasons for requiring these high achievers to be scrutinized more closely than others in the past?

I think that would advance the debate in a constructive way.

Since this blog typically attracts rational and serious people, I hope we get some rational debate on this subject.

Ann Althouse said...

Jim: Thanks for commenting. I can't defend opposing these nominations. I have never heard anything other than the generic out-of-the-mainstream charge. The best I can say for the Democrats is that they are trying to make some sort of showing for themselves to use as leverage in the next election.

docweasel said...

Hrm. I detect Ms. Althouse once again burnishing her "moderate" credentials by questioning the motives of President Bush by nominating some women and minorities. He's not _exclusively_ nominating women and minorities, in fact I'd guess the majority are white middle aged males. So, are you insinuating that the women/minorities he is nominating are merely tokens and are not worthy nominees, and/or are only under consideration to mortify Dems and liberals? That's pretty far-fetched.

I think its more notable such a large number of those being filibustered seem to be women/minorities, which supports the article you quote.

Ann Althouse said...

Doc: I don't know but I would suspect there are essentially two tracks, two pools from which nominees are drawn. And I suspect you realize this.

Adam said...

Calabresi's resting on a bit of misleading language here -- Judge Brown's 76% was in a "retain: yes/no" vote where everyone running was 70% and up, not against another challenger; Owen essentially ran uncontested in her race -- just a Libertarian opposing her, no Democrat.

Old Patriot said...

I may be giving George Bush undue credit, but I believe one reason behind his appointments of women and minorities is to dilute the "racist" argument before the courts. It's hard to claim the judge was racially biased when both the judge and the defendant share the same race, or gender, or ethnic group. As these candidates are also eminently qualified, it makes sense to appoint as many of them as seems appropriate. I think Bush's opponents are "misunderestimating" him again.

Freeman Hunt said...

I think Bush ends up with diversity in his judges and cabinet the same way that Rush Limbaugh does with his show staff. They just hire the best people. Some of those people are minorities.

lawrence krubner said...

"I think some of this dissonance is being created in framing issues of gay rights, medical marijuana, and the right to die in federalism terms."

I agree that certain recent issues have seen the sides reversed. Gay rights, medical marijuana and Terry Schiavo are issues where some factions on the left shouted "Leave it to the states!" And that does create some dissonance. I think at one point Ann Coulter was mocking "liberals" for their new found embrace of federalism.

But in my social circle, which mostly consists of people who are left-of-center politically, the federalism of these issues has caused discomfort. I recall a good friend of mine exclaiming her happiness that a Massachucetts court had basically legalized gay marriage for the whole country, and I said to her, "So you support states-rights?", a question which left her uncomfortable (the question is somewhat unfair, admittedly).

I can't, of course, pretend to know every faction on the left, there are too many (just as there are too many on the right) but of the ones I know, none have yet shown real comfort in pushing the federalist justification of the causes they believe in.

amba said...

In this post I've called it "the skirt strategy" and talked some about the other side:

But [Brown is] black, and a woman. Not only are these constituencies traditionally claimed by the Democratic Party, but opposition to Brown's nomination will be portrayed by Republicans as racist and sexist -- or, more convincingly, as ripping the equal-opportunity mask off of naked left-wing ideology. As Outside the Beltway observes drily, "That the GOP has decided to implement the rule change with Brown, a black woman, is likely not a coincidence."

The irony is that this opportunistic ideological war is shattering so many glass ceilings. . . .

amba said...

Oh, and - Krubner says "dissonance for the conservative movement - how would they deal with a bunch of states-right progressives?"

And don't forget - a bunch of deficit-hawk progressives!

leeontheroad said...

A way to tell how Democrats writ large will or may do with any extent to which some women and ethnic minority Bush nominees are designed to "pick off" the votes of socially more conservative African-American Democrats. . . is to look at what socially more conservative African-Americans think of such a move. Duh.

What many Black and Latino voters I know think is precisely that a number of Bush nominees are Republican "window dressing." Granted, this is an unscientific sample. But there may be something common in folks being all "for" breaking more of the "glass ceiling" for people of color in positions of power or influence. Yet many will state that a few nominees who help maintain other economic, political and social structures that block access to (economic) power for other people of color is, frankly, not much better than the 19th century overseer system. Those are "fighting words" of course, in a nation that strives against its history to (pretend to be) "color blind." That's a reason I think you see most white Democrats dancing around the issue and so many Democrats holding their breath that Barack Obama will prove to be the leader he appears to be.

Until any party promotes a political program to confront the convergence of poverty and race-- without dividing folks by race-- I suspect that large parts of the "Black vote" and "Latino vote" are going to be politically in play, with only minor gains by Republicans. For example, pushing an "ownership society" sounds good to many folks, both those who own things and those who don't. But it hasn't escaped the attention of lots of Black, Latino and other folks I know that e.g. an "ownership society" means very little if lower socio-economic and Black and Latino folks have to go into more, longer term and higher interest rate debt-- while possibly losing assurances such as health insurance and Social Security-- to literally "buy into" what the (mostly white, imagine that) folks proposing it inherited.

Jinnmabe said...

Damned if he does, damned if he doesn't. If Bush doesn't nominate minority judges, he's a racist. If he DOES nominate minority judges, it's just window dressing and he's just playing the race card. It must seem so incredibly condescending and be so frustrating for women or minority judges to have to assume that they were/weren't appointed because of their race/sex and not because of their abilities. Talk about the bigotry of low expectations.

Ann Althouse said...

Bench: The alternative is to pretend reality doesn't exist. Of course, anything Bush does has an unspoken element of political strategy. I'm not going to be overly aghast about it, but I'm not going to play along with the pretense.

Adam said...

Well, we're dealing with a man whose father claimed as President that Clarence Thomas was the "best available" person for the nomination in July 1991, so you'll forgive a little cynicism coming from the left.

Jim Gust said...

Adam, it all depends upon what you mean by "best available." In contrast to other Republican nominees to the Supreme Court, I think Bush got exactly what he expected and hoped for. Nominees who were "better" by some criteria might not have turned out the same.

It time, the Thomas nomination could prove to be a masterstroke.

vnjagvet said...

I still haven't seen anyone here who has made a respectable argument that either Roagers Brown or Owens are truly "outside the mainstream" or anything but appointees with solid judicial credentials who are serving with competance on the highest appellate courts in the two most populous states in the country.

It seems to me that the motive of the appointer is irrelevant when the appointee is both professionally and personally qualified. Am I wrong?

Wade Garrett said...

I agree with Adam about Thomas. People of both parties have a right to be cynical; what's conservative about nominating a less qualified judge simply to drive a wedge between the opposition party and part of their political base?

I think the Democrats are going a bit too far in trying to prevent most of their appointments, but I do have problems with a couple of these nominees. James Leon Holmes, for example, comes across like a Hollywood movie political villain rather than a real-life nominee for the Federal judiciary. Surely, he is not the best man for the job. Nominees like Holmes make Bush's "best person for the job" claims about the Hispanic, women and African-American nominees sound disingenuous.

Adam said...

Jim, I'd have no problem with those standards if Republicans had applied them to Clinton's nominees from 1995-2000. They did not.

Janice Rogers Brown would enact Herbert Spencer's Social Statics, it seems clear, and would return the commerce clause to a pre-1937 understanding.

On Owen, well, when Alberto Gonzales says that your dissent proposes "an unconscionable act of judicial activism" in the field of reproductive rights, well, my ears prick up.

Ann Althouse said...

Adam: I think that Gonzales/Owen thing has been debunked. This is the sort of thing that really bothers me. Few people are really going to research the judge's background, and there are flat-out propaganda sites, like the one you linked to, which set out to demolish candidates whose ideology they object to.

Adam said...

I don't know that citing the Committee for Justice to refute PFAW is the way to go -- Battle Of The Judicial Interest Groups doesn't get interesting until the obstacle course.

I found Judge Gonzales' subsequent walking-back of those remarks to be completely unconvincing on both a jurisprudential and a linguistic level.

Is Judge Owen qualified to serve on the 5th Circuit? Of course. So were Enrique Moreno, Jorge Rangel and Alston Johnson.

vnjagvet said...


Out of context excerpts from speeches and dissenting opinions put together by an organization with an axe to grind do not show a judge is "out of the mainstream", it seems to me.

Gonzales' quote on Owens was, if I recall right, his comment in a majority opinion about the consequences of Judge Owens' reasoning in a dissenting opinion in that same case. This, of course, is a well known rhetorical device often used in the back and forth typical in busy appellate court.

BTW,I believe her dissent in that case did express a legitimate point of view (one probabaly supported by a majority of Texans, incidentally).

I did not agree with the Republican's approach to which you refer, either. I think "ideological foul play" in the Judiciary Committee is as wrong as arguing for a supermajority for consent of the Senate to presidential appointments.

docweasel said...

Powerline links to some more thoughts on this subject:

Josh Jasper said...

Why are Senate Democrats so afraid of conservative judicial nominees who are African Americans, Hispanics, Catholics, and women?

I can't imagine why any Senate Democrat would answer that. What's the purpose of asking questions that devolve to "When will you stop beating your wife?", other than to set up a straw man.

Is the author angling for a political office? Because his article was nothing but Republican talking points.

docweasel said...

Kos agrees with Ann (kind of) http://www.dailykos.com/storyonly/2005/5/1/225323/5346

Adam said...

Err, that diary was by a user named Armando, not Markos himself.

docweasel said...

Err, I was referring to the site, not an individual or I would have said Markos Moulitsos Zuniga. Kos="Daily Kos and all its contributors" It was on the main page as a main entry.

There's a herd mentality over there anyway so one diarist is pretty interchangable with another.