Since the Beginning of George W. Bush's Tenure in the White House, Liberals Have Waged

CAMPAIGN 2004

Filibuster Politics
The judicial issue is a winner for Republicans.
BY C. BOYDEN GRAY
Wednesday, October 13, 2004 12:01 a.m.
With three weeks to Election Day, it is time for Republicans to close the deal with swing voters--independents, Southern and Midwestern moderates, blue-collar households, Catholics and Hispanics. The tactics of Senate Democrats and their liberal allies are now so nakedly partisan that the judiciary could well become the issue that wins tight Senate races and presidential battleground states for the GOP. (A secondary benefit of campaigning on this issue is that it establishes a clear "judiciary mandate"--an advantage when addressing the Senate's rule for filibusters and a bonus when the time comes to nominate a Supreme Court justice.)

Since the beginning of George W. Bush's tenure in the White House, liberals have waged an unprecedented campaign to block, delay and besmirch his judicial nominees. The tone was set when the left smeared Charles Pickering--a federal judge, a former president of the Southern Baptist Convention and a longtime proponent of racial reconciliation in the New South--as a racist, and blocked his nomination.

Tensions boiled over when the president nominated Miguel Estrada, a Honduran immigrant with an impeccable record, to the D.C. Circuit Court of Appeals. The minority Democrats, led by Tom Daschle, blocked him with a filibuster. Never before had the filibuster been used to block a judicial nominee with majority support. The filibuster had the effect of twisting the Constitution's explicit 51-vote judicial confirmation standard to an unconstitutional 60-vote hurdle.

Leaked Democratic memos indicate that Mr. Estrada was targeted, in part, because, "he is Latino, and the White House seems to be grooming him for a Supreme Court appointment," and because, "we can't make the same mistake we made with Clarence Thomas." Judiciary Democrats, led by Sens. Edward Kennedy, Patrick Leahy and Richard Durbin, agreed to block or slow-walk particular nominees at the behest of liberal campaign donors, including the trial lawyers, the NAACP, and the national abortion providers' lobby. These Democrats decided, in advance of hearings, which nominees to block, and Democratic staffers characterized Bush nominees as "Nazis."

Since 2003, Democrats have filibustered Mr. Estrada plus nine other appellate nominees: Carolyn Kuhl, Priscilla Owen, Judge Pickering, Bill Pryor, Janice Rogers Brown, Henry Saad, David McKeague, Richard Griffin and William Myers. Most of them were elected previously to their states' supreme courts and are either women or ethnic minorities. Others have been singled out due to a litmus test on abortion, by which Democrats have come perilously close to stating that people of orthodox religious faith are ineligible for the bench. Sen. Carl Levin has obstructed the three Michigan nominees, one of whom would be the first Arab-American on a federal circuit court, in retaliation for a Levin family member not being confirmed during the Clinton years. John Edwards has spent four years obstructing the respected Terrence Boyle's nomination to the Fourth Circuit, and has done nothing to facilitate the historic nomination of Claude Allen, who is black, also to the Fourth Circuit.

In tossup states, certainly for Senate races, revulsion at Democratic obstruction can tip the vote in the GOP's favor--as in 2002, when the strategy of raising the judiciary clearly succeeded. Senate Republican polling indicates that the 2002 fight over Mr. Pickering brought judicial nominations into the top three Democratic negatives. The judicial debate has remained high among the negatives ever since. The same polling indicates that in close contests in Georgia (Saxby Chambliss), Missouri (Jim Talent), Colorado (Wayne Allard), Texas (John Cornyn) and Minnesota (Norm Coleman), judicial issues motivated conservative base voters, as well as swing moderates, into the GOP column, thereby returning the Senate majority to Republicans.

In June 2003, the Committee for Justice commissioned a poll of Hispanics nationwide, a plurality of whom were Democrats: 33% knew of Mr. Estrada and the battle over his nomination, extremely high awareness for an appellate nominee. When told of his story and qualifications, 87% believed he deserved an up-or-down vote in the Senate. Sen. Allard has said that when he reached out to Hispanics in his state in 2002, he talked about just two issues: tax cuts and Miguel Estrada. On Election Day, Sen. Allard's support among Hispanics had improved by 25%, contributing to his tight margin of victory. This year, Republicans should remind Hispanics of Mr. Estrada--opposed by Democrats "because he is Latino, and the White House seems to be grooming him for a Supreme Court appointment."

While the history of Democratic tactics on Judge Pickering and Mr. Estrada may be enough to drive Southern and Hispanic votes, the other part of the argument is substantive. A survey of Catholics summarizes trends that likely reflect attitudes in many other groups: that the courts are too liberal and Republicans are more likely to appoint more mainstream judges. According to the August poll by QEV Analytics, Catholics agreed by a margin of 54% to 39% that "'liberal federal judges' threaten traditional American values." Bush-voting Catholics agreed by a margin of 75% to 21%. Of greater import, a margin of 55% to 37% of swing voters identifies liberal judges as a danger; and by 45% to 39%, respondents said President Bush was "more likely to appoint federal judges who share your values." This margin could be wider, with a little work.

Also of interest are Catholic views of recent decisions: 79% disagreed with the Supreme Court that school prayer violated the Constitution; 77% disagreed with the Ninth Circuit that "under God" in the Pledge of Allegiance was unconstitutional; 73% disagreed on the striking down of Internet porn regulations; and 62% disagreed with the Massachusetts court finding a right to gay marriage. We should add to these the other rulings that are important not only to conservatives, but to many moderates, minorities, and blue-collar voters--on school choice, racial preferences, church-state relations, partial-birth abortion, parental consent for minor-abortion, gays in the Boy Scouts, gun rights, tort reform, campaign finance and property rights.

The philosophy of judicial restraint, which enjoys a distinguished pedigree in our history, offers the potential for compromise. Left-leaning judicial activists have expanded the courts' power over American life, but thanks to their overreach, judges--and their confirmations--are now politicized. Republicans should tell independents that constitutionalist judges will allow greater flexibility by withdrawing the judiciary from controversies best left to the legislatures.

The Supreme Court is now composed of four consistent liberals (John Paul Stevens, David Souter, Ruth Bader Ginsberg and Stephen Breyer), three firm conservatives (Chief Justice William Rehnquist, Clarence Thomas and Antonin Scalia), and two middle-of-the-roaders (Sandra Day O'Connor and Anthony Kennedy). In all likelihood, the next president will replace at least two and as many as four. The type of jurists confirmed will determine the course of government for the next 50 years. Will liberal activists dominate, creating new constitutional mandates favoring their social policy, aiding the plaintiffs' bar, and continuing Washington's accretion of power? Or will constitutionalists rule, returning divisive social debates to the people, throwing out junk lawsuits, and regarding federal power skeptically? More to the point, will judges be returned to their historical role as neutral interpreters of the Constitution and precedent, or will the imperial judiciary be revitalized and extended for decades? It's up to Republicans to make clear the choice.

Mr. Gray, White House counsel to the first President Bush, is chairman of the Committee for Justice.