Posted Nov. 12, 2003
Republican Senators and right-wing pundits have made a series of irresponsible charges of racism and religious bigotry in order to divert attention from the record of the administration’s nominees and the damage they could cause as federal appeals court judges.
When Democratic Senators opposed the appeals court nomination of Miguel Estrada based on his record and his unwillingness to fully answer senators’ questions about his judicial philosophy, Senate Republicans and their political allies charged that opponents of Estrada’s confirmation were anti-Hispanic. When Senators and others raised questions about Charles Pickering’s record as a judge and elected official, they were called anti-Christian. When Senators raised concerns about William Pryor’s hostility to the constitutional principle of church-state separation, they were called anti-Catholic. When Senators pointed out the extremism and right-wing activism reflected in Janice Rogers Brown’s record, they were called racists. And this week, we expect to hear that those who are opposing nominees Carolyn Kuhl, Priscilla Owen, and Janice Rogers Brown are anti-woman.
Each of these charges is false, unfair, and divisive. They are designed to inflame, not inform. The people leveling these charges are playing the politics of intimidation.
In every case, Democrats should respond to these base charges by seeking the higher ground and bringing the debate back to the issues at stake and the troubling records of the administration’s nominees
It is an unseemly display of intellectual dishonesty and hypocrisy for Republican leaders, including senators like Orrin Hatch, to claim repeatedly that use of the filibuster to prevent final votes on judicial nominees is either unprecedented or unconstitutional.
The historical record is clear that the filibuster has been used by both Republicans and Democrats with respect to controversial judicial nominations. In defending a Republican-led filibuster on a judicial nomination in 1994, Hatch himself explained that the filibuster is “one of the few tools the minority has to protect itself and those the minority represents.” Moreover, during the Clinton administration, Senate Republicans blocked dozens of Clinton nominees with much less open and accountable procedures like secret holds. Fully one-third of Clinton’s appeals court nominees from 1995 through 2000 were kept off the bench – many without even a hearing or committee vote – while others were delayed for as long as four years.
If it is constitutional for a committee chair to stop a nominee by refusing to hold a hearing, or for a secret hold by a single Republican senator to prevent a nominee from moving forward, how can it be unconstitutional for 41 Democratic senators to prevent a final vote using a public Senate procedure specifically designed to protect the rights of the minority? It is clear that the answer has nothing to do with the Constitution and everything to do with the politics of power at all costs.
Senate Majority Leader Bill Frist was among those voting against cloture on the nomination of Richard Paez in 2000. Yet now Frist says, “If filibusters are going to be made part of the judicial nominee process, I think you will see increasing discussion over whether the rules should be changed.”