Genius In Jeopardy
Bush will spend his political capital buying unacceptably extreme, partisan jurists
 

January 6 2005
Counterbias.com
Steve Horowitz
 

Part of the genius of our Constitution has always been the built-in constraints that discourage elected officials from veering too far from mainstream sensibilities.

Those constraints become moot, of course, when the mainstream itself becomes warped, as when Oklahomans elected the clearly disturbed Tom Coburn to the Senate. By and large, however, our system's inherent checks and balances work — preventing, for example, presidents from appointing radicals and extremists to his Cabinet and the federal judiciary.

But an idiot is waging war on that genius. George Bush refuses to accept any limits on his determination to turn our democracy into a conservative theocracy. He seems hell-bent on overcoming the moderating influences of procedure, courtesy and simple decency in order to get his way. And with thugs like Bill Frist and Rick Santorum standing by, menacingly slapping blackjacks into their open palms, Bush will brook no opposition in his attempt to ram ideologues down the throats of the American people, rendering all the more bitterly laughable his promise to be a uniter, not a divider.

Consider this statement from the White House website about Bush's intent to resubmit the names of 20 judicial nominees who weren't confirmed in the last Congress:

"An effective and efficient judicial system is vital to ensuring justice for all Americans. The President nominated highly qualified individuals to the Federal courts during his first term, but the Senate failed to vote on many nominations. Unfortunately, this only exacerbates the issue of judicial vacancies, compounds the backlog of cases, and delays timely justice for the American people. The Senate has a Constitutional obligation to vote up or down on a President's judicial nominees and the President looks forward to working with the new Senate to ensure a well-functioning and independent judiciary. When the Senate reconvenes, the President intends to nominate again ... 20 individuals who did not receive up or down votes in the President's first term, 16 of whom were nominated more than a year ago."

Now consider the truth:

The Senate approved 204 Bush nominees.

The federal judicial vacancy rate is now the lowest it's been in 15 years, outpacing the approval rate of Reagan, Bush Sr. and Clinton.

Ten of the 20 nominees never even made it out of the Republican-controlled Judiciary Committee, meaning even some Republicans voted against them. (You can imagine how unqualified and/or extreme a nominee must be for that to happen.)

The Senate has no "Constitutional obligation" to provide an up or down vote on judicial nominees. Article II, Section 2 of the Constitution mandates only that presidential appointments be made "by and with the advice and consent of the Senate." How that advice and consent is or is not rendered depends entirely on centuries-old procedures and traditions.

If Bush were really worried about "timely justice for the American people," he wouldn't be re-nominating such unacceptably extreme and partisan jurists, since he knows full well that Democrats will vociferously oppose them and still have the numbers to sustain a filibuster.

But Bush has political capital to spend, as he boorishly reminded us after his election. And these, as the Center for American Progress points out, are the kinds of people he wants to spend it on:

• Pentagon general counsel William J. Haynes IV. Haynes led the group of attorneys responsible for the memos contending "the president wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department." Haynes's nomination was derailed when "he was asked by the Judiciary Committee to provide material about his role in the [torture] issue and failed to do so." Haynes also developed and defended the administration's policy of incarcerating "U.S. citizens without counsel or judicial review" which was rejected as illegal by the Supreme Court. Another Haynes product: the rules for military tribunals planned for Guantanamo Bay that was described as "unjust, unwise, un-American" by the Economist magazine.
   

• California Supreme Court Justice Janice Rodgers Brown. The New York Times described her record as a "war on mainstream legal values that most Americans hold dear." It's not hard to see why. Brown on seniors: "Today's senior citizens blithely cannibalize their grandchildren because they have a right to get as much "free" stuff as the political system will permit them to extract." Brown on New Deal programs, such as Social Security: "The New Deal...inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document...1937...marks the triumph of our own socialist revolution." Brown, ignoring Supreme Court precedent, has argued that racially discriminatory speech in the workplace is protected by the First Amendment. She has also denounced the Supreme Courts landmark ruling U.S. v. Carolene Products; a view which, if adopted "would signal the death-knell for a vast range of health labor, and environmental standards it enacted during the last century." Learn more about Janice Rodgers Brown.
   

• Alabama Attorney General William Pryor. His confirmation to a lifetime appointment on the federal bench would be a huge blow for women's rights. Pryor considers Roe v. Wade to be "the worst abomination of constitutional law in our nation's history." Further, he has defended restrictions on abortion in Alabama even when they lacked "the constitutionally required exception to protect the health of the pregnant woman." Pryor supported legislation in Alabama which would have required Alabama to appoint "a lawyer representing the state whenever a female under age 18 sought to have an abortion without her parents' consent." Pryor argued that the government attorney "should be involved to protect the state's interest in preserving life." The AP reported that Pryor "envisioned attorneys with networks like the Alabama Lawyers for Life, of which he used to be a member, agreeing to represent the state for free and 'potentially' taking an adversarial stand against abortions." Learn more about William Pryor.
   

• Texas Supreme Court justice Pricilla Owen. During their time together on the Texas Supreme Court, Attorney General-nominee Alberto Gonzalez repeatedly criticized Owen for ignoring the law. In one case, relating to requirements for minors to "judicially bypass" parental consent requirements for abortion, Gonzalez characterized Owen's narrow view of the statute as "directly contradicted" by the legislative history and "an unconscionable act of judicial activism." In another case, where Owen would have effectively rewritten the law to protect manufactures of products that cause injury, Gonzales called Owen's opinion an attempt to "judicially amend the statute." Gonzales also joined an opinion that described an Owen dissent, which would have allowed certain private land owners to exempt themselves from environmental regulations, as "nothing more than inflammatory rhetoric."

It's unfortunate that a small, antagonistic simpleton, a man with so little understanding of revered constitutional principles, intends to subvert them no matter what the cost to the nation in bitter division and legislative paralysis. We can only hope that Senate Democrats have enough spine to stand up to the little dictator — an iffy proposition, given their fear of being Daschled.

Even more chilling is whether the Constitution itself can withstand the assault. Because if Bush gets his way, radical judicial activists will be working to shred its protections and freedoms for decades to come.

But then, genius has always been the target of hateful, insecure bullies, and almost always triumphs.

Eventually.

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