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.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.
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.
April 30, 2005
The racial side of the filibuster controversy.
Lawprof Steven Calabresi has this piece in the new Weekly Standard:
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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.
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.
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.
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.
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.
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.
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.
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.
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.
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. . . .
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.
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.
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.
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.
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?
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.
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.
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.
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.
Adam:
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.
Powerline links to some more thoughts on this subject:
http://powerlineblog.com/archives/010335.php
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.
Kos agrees with Ann (kind of) http://www.dailykos.com/storyonly/2005/5/1/225323/5346
Err, that diary was by a user named Armando, not Markos himself.
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.
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