I WILL RESTORE YOUR JUDGES AS IN DAYS OF OLD, YOUR COUNSELORS AS AT THE BEGINNING. AFTERWARD, YOU WILL BE CALLED THE CITY OF RIGHTEOUSNESS, THE FAITHFUL CITY." ISAIAH 1:26
April 2005
Dear Friends:
For more than 27 years, I have been writing monthly letters sharing advice and concerns about the moral integrity of the nation and the welfare of the family. A handful of those letters have turned out to be both prophetic and historic—if not to my readers, then certainly to myself. This new letter that you hold I believe, may be one of those commentaries that will have significance years from now and deserves to be taken very seriously today. I pray that you will read it in its entirety. It is too long, I know, but I had to say what is written here.
Thank you for hearing me out.
James Dobson
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As the nation now knows, Terri Schiavo slipped out of this life and into eternity on Thursday, March 31st. 1 This pitiful 41-year-old mentally disabled woman was condemned to death by an immoral Florida court judge named George Greer, who never came to visit her, yet ordered that she be dehydrated and starved to death at the insistence of her "husband," Michael. Mr. Schiavo lives with another woman with whom he fathered two babies2, and yet, he was designated as the "guardian" of Terri's welfare to the moment of death. Seven years after Terri's brain injury occurred, and five years after Michael successfully obtained a reputed million-dollar plus malpractice settlement3 designated for his wife's care, he began saying he remembered that she didn't want to be sustained by a feeding tube. His claim is nothing more than hearsay and there is no written record to substantiate it. But for Judge Greer, it was sufficient to grant his wish to have her put to death, despite the husband's enormous conflict of interest, related to his common law "marriage," divided loyalties and competing fiduciary responsibility.
To understand the enormity of this decision, it is important to recognize that Terri was not comatose before the killing began, was not on a respirator, and was not unaware of her circumstances. She smiled faintly, she followed people and objects with her eyes, and according to the registered nurse who had cared for her, she succeeded in saying a few words. Nevertheless, Michael and the unjust judge made sure that Terri received the barest minimum of medical attention, no therapy such as assistance in learning to swallow, and, eventually, no food or water. Toward the end, the judge ordered that Terri not even be permitted to have ice chips placed in her mouth to moisten her parched tongue. She was confined to her room for five years with the shades drawn, could not be legally photographed or video taped, never received an MRI to determine the nature of her brain injury, and her parents were not even allowed to take her out in the warmth of the sun or to an outing at a mall. 4 And this is called justice.
Gary Bauer wrote this about Terri in a daily update distributed by his organization, American Values: "In the Gospel of Matthew, Chapter 25, verses 35 and 36, Jesus says, ‘For I was hungry and you gave me food. I was thirsty and you gave me drink, I was a stranger and you welcomed me.' His disciples were puzzled and asked when they had done those things for Him. Christ responds (verse 40) - ‘Truly, I say to you, as you did it to one of the least of these my brethren, you did it for me.'
Then Gary commented, "Surely, Terri Schiavo, abandoned by her husband, sentenced to death by our courts, regularly compared to a ‘vegetable,' qualifies as ‘the least of these.' Will someone give her a drink?" 5
The answer was, "no." Judge Greer had police posted at the door to keep anyone from bringing relief to Terri, and an entire family was arrested for attempting to give her a sip of water. 6 Toward the end, Michael even refused to let the priest provide communion for Terri, and instructed the police to arrest him if he tried. 7 And shortly thereafter, Terri died. God forgive us!
Not even a dog or a cat in the pound, or a prisoner on death row, would be treated with such cruelty. In fact, on the very Sunday evening when House Majority Leader Tom DeLay and Senate Majority Leader Bill Frist were scrambling to pass a bill to save Terri, and President Bush flew back from Texas to Washington D.C. to sign the pending legislation, what was CBS television news doing? It aired a feature on the property rights of animals! 8
The media repeatedly told the American people that Terri was "brain dead" and that her brain had "turned to liquid". 9 Just before Terri's death, ABC's Good Morning America aired an interview between co-host Charlie Gibson and Dr. Jack Kevorkian, known as "Dr. Death", who is serving a 10-25 year prison sentence for helping people kill themselves. 10 With a straight face, Gibson asked Kevorkian to comment on the "circus" that surrounded the effort to save Terri. 11
After the media had shamelessly made the people think that Terri was sustained by artificial means and was probably dying, ABC News conducted a poll to determine how folks felt about "letting" her die. Have you wondered why the results were so lopsided in favor of death? Maybe I can explain it. The specific question asked by pollsters about whether or not it was appropriate to withhold food and water is as follows: "Schiavo suffered brain damage and has been on life support for 15 years. Doctors say she has no consciousness and her condition is irreversible. Do you support the decision to remove Terri's feeding tube?" 12
Of course the majority of Americans answered affirmatively. Who would want to live unconscious, breathing with the aid of a respirator for 15 years? By distorting the facts given in the set-up question, the media got the results they were looking for. But, they were simply not accurate. Pollster John Zogby conducted a poll during the week of Terri’s death and asked the following question:
“If a disabled person is not terminally ill, not in a coma, and not being kept alive on life support, and they have no written directive, should or should they not be denied food and water?”
These were the conditions Terri Schiavo was in prior to being sentenced to death by Judge Greer. To that question, 79 percent of those surveyed said the patient should not have food and water withheld! 13 Have you seen that statistic quoted in your paper or on the evening news? Of course not—because it runs counter to the agenda of the mainstream press. Their silence is deafening.
This cooperative effort between the judiciary and the media to kill an innocent woman is one of the greatest miscarriages of justice in American history. It has implications for the 25,000 adults and 10,000 children in this country who are also fed and hydrated through a tube. 14 What are we going to do, kill them all? Is every mentally disabled human being now fair game if they have an inconvenienced relative who wants to see him or her dead? Apparently, all they have to do is assert that starvation is what the victim wanted, and then find a wicked judge like George Greer who will order them subjected to slow execution. What a sad day this is for Terri and Schindler family, and for all of humanity! It is eerily similar to what the Nazis did in the 1930s. They began by "euthanizing" the mentally retarded, and from there, it was a small step to mass murder.
Terri's killing signifies conclusively that the judicial system in this country is far too powerful and is totally out of control. No agency of government can rival its reach. Not even the combined influence of the President, both Houses of the Congress and the Governor of Florida could override the wishes of a relatively low-ranking judge. His decision was upheld by several federal court judges, and ultimately, by the U.S. Supreme Court that refused six times to hear Terri's case. 15 She was doomed by that time. How could Terri's parents have expected compassion from the Justices who have declared unconstitutional the ban on the horrible procedure known as partial birth abortion? Anyone who would sanction a law permitting the brains of healthy, unanaesthetized babies to be suctioned out is capable of any evil.
Unfortunately, this decision by the courts is symptomatic of a much wider slide by the courts into moral relativism. Consider, for example, another terrible decision handed down on March 14, 2005. Judge Richard Kramer of the San Francisco Superior Court summarily struck down California's law prohibiting same-sex marriage. The measure was deemed to be unconstitutional, he said, because "It appears that no rational purpose exists for limiting marriage in this state to opposite sex partners." 16 No rational purpose?
That takes us back to 2000, when, after a vigorous and highly emotional debate, fully sixty-one percent of Californians voted in a referendum to define marriage as being exclusively between one man and one woman; only thirty-nine percent disagreed. 17 Despite this overwhelming response by more than four million people, which became the law in the Golden State, Judge Kramer had the temerity to say that the will of the majority made no sense. He set himself up as the sole determiner of rationality. What utter arrogance! If the decision stands, it will be reflected in every department of government and in every California public school from kindergarten to high school.
We knew this judicial assault on the institution of marriage was coming, and it certainly won't be the last. Liberal judges throughout the nation are itching to sanction same-sex marriages by judicial decree, despite their awareness that the vast majority of Americans do not want the family to be redefined. There can be no doubt about that fact. Eighteen states have voted recently on the meaning of marriage, and all 18 have passed constitutional amendments defining marriage exclusively as being between one man and one woman. There have been no exceptions, not even in socially liberal Oregon and Hawaii. In all, 38 states have passed "defense of marriage acts."
Nevertheless, there in San Francisco a few weeks ago sat an imperious judge who concluded that marriage—as it has existed for more than 5,000 years on every continent and in every culture on earth—is not rational and should be retooled. Although many fine men and women serve on the bench, this decision illustrates the heady abuse of power that is all too common among independent fiefdoms known as judges. They rule like royal monarchs. And sitting on the top of the pyramid is the U.S. Supreme Court, which threatens the liberty that was purchased with the blood of countless men and women who died to secure it.
How did this happen to us? How could such a great and freedom-loving people have allowed themselves to be dominated by a handful of unelected, unaccountable, arrogant and often godless judges, many of whom receive lifetime appointments and regularly circumvent the democratic process? It is a breath-taking and ominous development. Was this the desire of the Founding Fathers when they designed this great representative form of government? Hardly!
Thomas Jefferson warned repeatedly about the emergence of an out–of-control judiciary that would destroy the Constitution and, along with it, America's fundamental freedoms. He first became alarmed when, in 1803, the U. S. Supreme Court issued a landmark decision called Marbury v. Madison. It allowed the Justices to rule on the constitutionality of every legal issue, both inside and outside the government, giving themselves unrivaled imperial power. The concept of "checks and balances" that was intended to keep one branch from eclipsing the other two was no longer in force—at least not with regard to the judiciary. Thereafter, the President, the Congress, and the will of millions of American people have been subservient to the rulings of five imperious justices, along with numerous lower court judges, who continue to issue their decrees beyond the reach of any authority.
When Jefferson recognized the full implications of the Marbury decision, he wrote this prophetic statement: "It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. It is one which would place us under the despotism of an oligarchy." 18
BINGO! What we have today, 202 years later, is an oligarchy (rule by a small cadre of elites.) The courts simply strike down laws and policies they don't like, whether their opinions reflect the provisions of the Constitution or not. Furthermore, the activist judges and those who support them have turned the Constitution into what they call "a living, breathing document," in which its actual words no longer mean what they say. The Constitution "evolves," they tell us, to fit the biases of the court. Consequently, we no longer have a government "of the people, by the people and for the people," as Abraham Lincoln described it at Gettysburg. It is, instead—an oligarchy.
The Marbury decision in 1803 continued to agitate Jefferson for the next two decades. He wrote in 1819: "The Constitution...is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please. It has long been my opinion, and I have never shrunk from its expression...that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped." 19
Jefferson issued one more warning in 1823, just three years before his death. This time, however, he was not simply predicting the rise of an imperious court; by then he had observed it first hand. Jefferson said, "At the establishment of our constitution, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous…"20
Now, the misfortune that worried Jefferson has produced for us a culture of death that is steeped in moral relativism. We are victims in our day of the grab for power that should have been squelched two centuries ago. Since then, the Supreme Court Justices have simply overridden the will of the people, regularly and without apology. Every time they convene as a body it is like a mini-constitutional convention in which the meaning of the foundational document is changed without the consent of the governed. Henceforth, their pronouncements are the ultimate law of the land.
As we have seen, it was never intended to be that way. The Executive, the Legislative and the Judicial Branches of government are "co-equal" in the eyes of the law. We know that the President and Congress regularly limit each others power, but what about the judiciary? Many Americans do not know that Article 3, Section 1 of the Constitution clearly gives to Congress the responsibility to establish every court with the exception of the Supreme Court. These lower federal courts serve at the pleasure of the Congress, which can abolish or create them at will. For example, the troublesome Ninth Circuit Court of Appeals in San Francisco, which consistently issues off-the-wall rulings, (including the Pledge of Allegiance decision in 2002) could be abolished and then staffed by different judges immediately. But the Congress has not had the political gumption to take any such action. Consequently, the Courts arrogantly thumb their noses at the other co-equal authorities.
Look again at what happened in the Schiavo case. On March 18th, congressional Republicans subpoenaed Terri in an effort to protect her from the heinous orders of Judge Greer, who had demanded that her feeding tube removed that day. 21 Yet, Greer flouted the law, defiantly ignoring the congressional order! Three days later, in an extraordinary Palm Sunday weekend session, the House and Senate passed a bill, allowing for federal judicial review of Terri's case. 22 Yet, hours later, U.S. District Judge James Whittemore refused to order the reinsertion of the tube. 23 After both the 11th Circuit and the U.S. Supreme Court refused to review the case, Judge Greer, a low-ranking County court probate judge, ignored new evidence that spoke to Terri's attempt to communicate a desire to live. 24 In the process, he not only defied the Congress and the President, but intimidated the governor of Florida, Jeb Bush. The media defended Greer, of course, claiming the Congress had violated the "separation of powers." 25 They were entirely wrong. Our representatives were attempting to fulfill their constitutional obligations, but they lost their nerve when stared down.
So the unchecked judiciary plows ahead. In March of this year, the Supreme Court struck down laws duly passed in 18 states permitting the execution of minors. 26 With that decision by five justices, the sentences of John Lee Malvo and other heinous killers were commuted. Malvo shot ten innocent people27 standing peacefully on the streets just for the thrill of watching them die, yet he will not pay the ultimate price for his murderous spree. Neither will Christopher Simmons, who broke into a house, bound and gagged an innocent woman with duct tape, beat her unmercifully, and then threw her body over the railing of a bridge. The autopsy revealed that she was still alive when Simmons dropped her to the river below. 28 And this was done for six dollars found in Shirley Ann Crook's purse. Does Simmons deserve to live? I think not. Please note that the same court that upholds the supposed Constitutional "right" to destroy innocent pre-born children has now prohibited the execution of cold-blooded murderers who are in their late teens.
While we can debate the wisdom of executing minors, (who, by the way, would have been at least 30 or 40 years old by the time their sentences were carried out,) the more important issue is how the law came to be struck down. It was not debated or decided by the American people or their representatives, where such issues should be deliberated and determined. It was nullified by judicial decree. The Oligarchy did it for us.
Even those who are opposed to the idea of capital punishment for minors should be gravely concerned about the criteria by which the Supreme Court arrived at its decision. In writing for the majority opinion, Justice Anthony Kennedy, whom I consider to be the most dangerous man in America, explained his rationale for the ruling, boldly claiming, "It is proper that we acknowledge the overwhelming weight of international public opinion against the juvenile death penalty." 29 This justification was written by a man who regularly ignores the weight of American public opinion in forcing his post-modern nonsense on our culture. Kennedy further promised that the Supreme Court of the United States would continue to look to "the laws of [selected] other countries and to international authorities" in re-interpreting the Constitution. 30
Justice Kennedy should be impeached for taking such a position, along with O'Connor, Ginsberg, Souter, Breyer, and Stevens, who have recently made similar statements. It is outrageous that we, the people of the United States, not only find ourselves governed unwillingly by a judicial oligarchy, but we are manhandled and lectured by this tiny body of lawyers who increasingly base its rulings not on our Constitution, nor on legal precedent, nor even on international law—but on something they call "world opinion." The American people have neither chosen nor agree with this opinion. Kennedy and his liberal colleagues simply pick and choose the people in countries or continents that agree with them, usually from Europe and Canada, and ignore the rest, such as South America, Asia, and Africa. This is what we call "judicial tyranny!" and for good reason.
Justice Antonin Scalia, writing for the minority, referred to his colleagues on the Court as "black-robed masters." 31 A few weeks later, he went on to decry the manipulation of the Constitution by the other justices. He said, "Within the last 20 years, we have found…the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years—[and] the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years." 32
Justice Scalia continued, "So it is literally true . . . that the court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people… and the Constitution is not a living organism, for Pete's sake. It's a legal document. And like all legal documents, it says some things and it doesn't say other things." 33
Please tell me you understand the danger of this outrageous situation. To put ultimate power in the hands of those who promise to make up their rules as they go along—or to base them on treaties that were never ratified by Congress—is a recipe for disaster. Democracy itself hangs in the balance.
But the beat goes on. As we speak, the Supreme Court is debating whether or not to permit the Ten Commandments to be displayed in public buildings and elsewhere on public property. Of course, the nine justices sit every day in the Supreme Court Building that is adorned by three depictions of the Ten Commandments or of Moses. 34 Our halls of government are positively brimming with references to our Judeo-Christian heritage. And don't forget the successive Sergeants at Arms, who since 1777 have opened each session of the Supreme Court by shouting, "God save this Court and the United States of America." 35 They will have to be silenced. Indeed, the entire nation will have to be transformed, it appears. And from here, religious liberty will hang precariously on every related decision.
Why? Because the American people demand it? No! It is because Justice Anthony Kennedy and the Oligarchy deem it so. Maybe they can find a rationale for trashing the remaining acknowledgments of the Creator somewhere in European public opinion. They certainly won't find it in this country. A CNN/USA Today/Gallup poll released earlier this month found that 76 percent of respondents supported displaying the Ten Commandments, while only 21 percent were opposed. 36 But then, our opinions are of no consequence.
Thomas Jefferson, you saw it coming.
Judicial hostility to faith, and especially Christianity has never been greater than today. On George W. Bush’s Inauguration Day, January 20, 2005, Judge Gary Lancaster of the U.S. District Court for Western Pennsylvania dismissed a federal case against hardcore pornographers that were distributing undeniably obscene sex videos depicting [pardon me for speaking graphically.] rape, mutilation, defecation, and the murder of women. In so doing, he declared federal obscenity statutes unconstitutional, overriding three decades of Supreme Court precedent in the process. Judge Lancaster defended his decision by proclaiming: "After [the 2003 Lawrence v. Texas decision], however, upholding the public sense of morality is not even a legitimate state interest that can justify infringing one’s liberty interest to engage in consensual sexual conduct in private" 37 [emphasis added]. This hardcore porn case is particularly troublesome. Judge Lancaster is essentially suggesting that America's laws cannot be based upon morality! Can you imagine such a ruling coming from a person who has sworn an oath to uphold the Constitution of the United States? Remember his name: Gary Lancaster. Never forget it! He is symbolic of what is wrong with America's judicial system. Heaven forbid that he should ever become a "black robed master" in the future.
Anti-religious rulings like the one made by Lancaster are coming in bunches now. Another occurred on March 28, when three members of the Colorado Supreme Court overturned the death- penalty verdict for cocaine addict, Robert Harlan. 38 Harlan was convicted and sentenced to die for kidnapping and raping a 25-year old waitress. He held her captive for two hours before killing her in cold-blood. The Court overturned the death penalty decision because, if you can believe this, five members of the jury had looked up Bible verses to help them understand the moral implications of capital punishment. In so doing, it was said, they violated the separation of church and state. 39 There was very little protest from the religious community in Colorado as the state moved yet another step closer to the concept of the law without reference to right and wrong.
What can we do to reverse this out of control court, especially on a federal level? First, we need legislators who have the moxie to do what is right for the country. With notable exceptions, many of them have been too timid to speak up. Congress needs to know we've had enough. Secondly, our country desperately needs principled judges who will interpret the Constitution as written, rather than creating their own version of it and imposing European socialism and "politically correct" thinking.
During his first term in office, President Bush tried repeatedly to nominate conservative, strict constructionist judges to a variety of vacant positions on Federal Courts of Appeals and District Courts throughout the country. However, he was thwarted at every turn by liberal senators, led by the recently "retired" Tom Daschle. The former Senator consistently led filibusters of nominees or engaged in otherwise obstructionist tactics to ensure that they would never receive a fair hearing. Today's liberals in the Senate need to understand that they will be held accountable at the ballot box if they try to prevent up or down votes on judicial nominees.
In a bold and principled move, the President has defied his liberal opponents in Congress by re-nominating twenty top-notch individuals and sending their names to the Senate for appointment to various judicial vacancies nationwide. 40 These judges are all committed to applying the Constitution of the United States in a conservative manner and interpreting it as it is written. If these individuals, and many others like them, were to be appointed to the federal bench, we could make significant strides toward the restoration of religious speech to the public square, the enforcement of laws regulating obscenity, the protection of voluntary prayer in public schools, the defense of the institution of traditional marriage, and the protection of pre-born babies from the horrors of abortion. In short, the makeup of the federal judiciary in the coming years will play a key role in determining how these issues – and many others that we hold dear – will be decided, and in demonstrating what kind of people we are as a nation.
Again in 2005, however, Senate Democrats are endeavoring to sabotage this process by blocking the confirmation of judges before they even have a chance to come up for a vote. In their minds, judges who will interpret the Constitution as written have no place on the federal judiciary. Senator Joe Biden [D-DE], made this clear during a recent Meet the Press interview. In discussing the impending retirement of Chief Justice William Rehnquist from the Supreme Court, host Tim Russert asked whether Senator Biden would support elevating Antonin Scalia to the position of Chief Justice. This is an important point, because Senator Biden voted to confirm Scalia to the Court in 1987, saying at the time that it would be improper for the Senate to "deprive the president of the United States from being able to appoint [a] person or persons who have a particular point of view..." 41 And yet now, that is exactly what Senator Biden and his cronies are advocating. He boldly told Mr. Russert that he would oppose elevating Antonin Scalia to Chief Justice "because of his methodology, the way he interprets the Constitution." 42 In other words, conservative, strict constructionists need not apply! So far, the Democrats are using this same shameful reasoning in blocking the president's federal court nominees.
To counter the obstructionist tactics of Senate Democrats, the Republicans have been considering a change in Senate rules, dubbed the "constitutional option," whereby the requirement for cloture (a procedure by which 60 senators can vote to terminate a filibuster and allow a vote) could be done away with when it comes to judicial nominations.
Senator Robert Byrd [D-WV], in a shocking display of arrogance, responded by suggesting that the Republican majority was employing Hitler-esque tactics: "Hitler never abandoned the cloak of legality. He recognized the enormous psychological value of having the law on his side. Instead, he turned the law inside out and made illegality legal. And that is what the nuclear [constitutional] option seeks to do." 43 He further lamented the minority status of Senate Democrats, going so far as to suggest that "Minorities have an illustrious past, full of suffering, torture, smear and even death. Jesus Christ was killed by a majority…"44
What incredible hypocrisy! Senator Byrd is a former member of the Ku Klux Klan who filibustered the Civil Rights Act of 1964. 45 It takes a great deal of gall for him to lecture Senate Republicans – and the American people – on the struggles faced by minorities.
The shrill and desperate tone employed by Senator Byrd and others on the American Left is indicative of just how much is at stake in this battle. The nomination and confirmation of federal court judges represents a critical moment in the history of our nation, as well as a monumental opportunity for men and women of faith and others in the pro-family movement to stand up and make their voices heard. I urge you to contact your Senators and ask them to uphold the integrity of the nomination process by allowing a vote for each of the nominees on the list.
PLEASE NOTE: THIS FIGHT TO END OBSTRUCTION AND RESTORE SENATE TRADITION IS CRITICAL! CALL YOUR SENATOR NOW AND INSIST THAT FILIBUSTERS NOT BE USED TO BLOCK JUDICIAL APPOINTMENTS. TELL THEM YOU WILL REMEMBER HOW THEY VOTE ON THIS ISSUE. IN ADDITION TO ALL THE DEMOCRAT SENATORS, THERE ARE SEVEN "SQUISHY" REPUBLICANS WHO HAVE NOT COMMITTED TO VOTING FOR THIS MEASURE. LET THEM HEAR FROM YOU NOW. PLEASE CALL THE CAPITOL SWITCHBOARD AT 202-224-3121. ADDITIONALLY, YOU MAY CALL THEIR LOCAL OFFICES DIRECTLY. THOSE NUMBERS ARE POSTED ON WWW.CITIZENLINK.ORG. THE SENATORS ARE AS FOLLOWS:
Senator Olympia Snowe [ME], Senator Susan Collins [ME], Senator Arlen Specter [PA], Senator John McCain [AZ], Senator Chuck Hagel [NE], Senator Lincoln Chafee [RI] and Senator John Warner [VA].
Additionally, there are numerous Democrats who should be called, Senator Ben Nelson [NE], Senator Robert Byrd [WV], Senator Kent Conrad [ND], Senator Bill Nelson [FL], Senator Jeff Bingaman [NM], Senator Hillary Clinton [NY], Senator Byron Dorgan [ND], Senator Mark Pryor [AR], Senator Tim Johnson [SD], Senator Mary Landrieu [LA], Senator Evan Bayh [IN], Senator Ken Salazar [CO] and Senator Harry Reid [NV]
Here's a message I hope you will deliver, said in your own words:
To all Democrat Senators: We will remember how you vote on the confirmation of judges. If you attempt to use the filibuster to deny a vote to those who hold to conservative views, you will have to explain it the next time you run. That is a promise. It will not be forgotten.
To all Republican Senators: Many of those who put you in power care passionately about the unborn child, about marriage, about the evil of cloning, and about religious liberty. The liberal judiciary threatens our beliefs about every one of these issues. You have been made the majority in the House, in the Senate, and a Republican occupies the White House. Together they represent the coveted "Triple Crown" of American politics. If you fritter away the responsibility to reform the courts, and if you ignore the "values" that motivated those who supported you at the polls, you do not deserve the trust given to you. It's time to fish or cut bait.
For those who live in Pennsylvania, your Senator, Arlen Specter, is again threatening to subvert the nomination process. He recently noted that "the far right [i.e. those of use who believe that the Constitution is a document with a moral foundation that must be interpreted as written] is going to come hard at a nominee if it is not a nominee of their choosing. But I think there's a much broader base in America than the far right." 46 When you call his office, I hope you'll insist that he keep the commitment he made to give all of President Bush's nominees a full and fair review. Based on his comments, it sounds like he may renege on that promise, and keep conservative judges off the bench. He must not be permitted to do that. You can call his Washington office at 202-224-4254 or e-mail him at arlen_specter@specter.senate.gov.
In addition to contacting your leaders, I hope that you will keep this issue in your prayers. We desperately need divine intervention to preserve the nation that was birthed in prayer from the beginning. Otherwise, the federal judiciary will continue to hold incredible power in determining whether babies in the womb will live or die, whether children and families will be exposed to hardcore pornography, whether traditional marriage will be protected in law, and so many other important issues.
I hope you will also pray about the likely upcoming vacancy on the Supreme Court. Chief Justice William H. Rehnquist, a principled man who has defended the values we hold dear for many years now, is expected to retire soon, having fought a long battle with cancer. When he does leave, the President will either elevate an existing member of the Supreme Court to Rehnquist's position, or nominate a new Chief Justice. According to the New York Times, "the potential outside nominees [most of whom are currently federal appellate judges] are all conservatives of various degrees." 47 Please join me in praying the President will appoint a man or woman of character, such as Antonin Scalia, as Chief Justice, and that he will choose another conservative appellate judge to take his place on the court. The presence of such individuals is critical to the protection of religious liberties, the fight against obscenity, the defense of marriage, and, indeed, to the moral stability of our nation.
Thanks in advance for your prayers and for taking the time to make your voice heard on these issues. All we ask is a fulfillment of the promises made by President Bush on the campaign trail. As pleased as we have been with his nominations thus far, we hope the President will support those nominees both in the public arena and behind the scenes in Congress. As for the rest of us, we have an opportunity to bring our beliefs and convictions to bear upon the makeup of the federal judiciary. Our children and future generations of Americans are counting on us to speak out on their behalf.
Also, please remember to support Focus on the Family Action, which provided the funds for this letter. [The word Action on your contribution will allow the funds to be used for public policy issues.] Our funds for this purpose are running low and we need your help. Although gifts to Focus Action are not tax deductible, they are vitally important in the fight to preserve the family and righteousness in the culture. The funds will be used to run ads and continue our lobbying effort. There are so many battles to be fought and time is short. The next 18 months will tell the tale. Thank you again for your partnership.
Sincerely,
James C. Dobson, Ph.D. Founder and Chairman
P.S. Let me emphasize once more that the Left has plans to wage an all-out war against the President's first Supreme Court nominee. The confrontation is coming with a vengeance. We must be ready to respond swiftly and forcefully! Your financial assistance will enable us to help counter those radicals who are determined to support liberal judges who will reinterpret the Constitution in keeping with their leftist ideology. We strongly disagree. In the words of the apostle Paul, "Let us not become weary in doing good, for at the proper time we will reap a harvest if we do not give up" [Galatians 6:9].
ENDNOTES
1. Mike Schneider, "Terri Schiavo Dies, 13 Days After Her Feeding Tube is Removed," Associated Press, 31 March 2005. 2. "Always to Care, Never to Kill," National Review Online, 21 March 2005. 3. Doug Bandow, "The Capitol Eye; Life and Death in Florida Corts," Copley News Service, 30 June 2004. 4. James Mostrom, "Solitary Confinement; Why You and I Should Care About Terri Schiavo," The Post-Standard, 1 March 2005; Amy Fagan, "High Court Rejects Schiavo Appeal," The Washington Times, 25 March 2005, p. A1. 5. Gary Bauer, "I Was Thirsty and You…" American Values End of Day Report, 24 March 2005. 6. Ibid. 7. "Interview with Terri Schiavo's Family Members," FOX News Hannity and Colmes, 24 March 2005. 8. "Animal Rights Law a Growing Field," CBS Evening News, 18 March 2005. 9. "A Closer Look: Terri Schiavo Case," World News Tonight with Peter Jennings, ABC News, 21 March 2005. 10. "Kevorkian Back in Prison After Temporary Release for Surgery," Associated Press, 7 February 2005. 11. "Jack Kevorkian Imprisoned Doctor Discusses Terri Schiavo," Good Morning America – ABC News Transcripts, 25 March 2005. 12. Josh Gerstein, "Schiavo's Mother Pleads for Court to Spare Terri," The New York Sun, 22 March 2005, p. A1; Jennifer Harper, "Reports, Polling Biased on Patient," The Washington Times, 24 March 2005; Fred Barnes, "The ABC's of Media Bias," The Weekly Standard, 4 April 2005. 13. "Zogby Poll: Americans Not in Favor of Starving Terri Schiavo," Zogby International, 3 April 2005. 14. James Q. Wilson, "Killing Terri," The Wall Street Journal, 21 March 2005. 15. Mitch Stacy, "Supreme Court, Appeals Court Reject Latest Appeal By Terri Schiavo's Parents," Aberdeen American News, 31 March 2005. 16. "Excerpts from Same-Sex Marriage Ruling," Associated Press, 15 March 2005. 17. "Cailfornians Vote Against Gay-Marriages, 61% to 39%," Associated Press, 8 March 2000. 18. See: www.landmarkcases.org/marbury/jefferson.html. 19. Ibid. 20, Ibid. 21. "Key Dates in the Terri Schiavo Case," Associated Press, 31 March 2005. 22. Carl Hulse, David D. Kirkpatrick, "Congress Passes and Bush Signs Schiavo Measure," The New York Times, 21 March 2005, p. A1. 23. "Key Dates in the Terri Schiavo Case," Associated Press, 31 March 2005. 24. Ibid. 25. Jules Whitcover, "Congress Ignores Separation of Powers," The Advocate, 26 March 2005, p. B6. 26. Linda Greenhouse, "Supreme Court, 5-4, Forbids Execution in Juvenile Crime," The New York Times, 2 March 2005, p. A1. 27. Tom Jackman, "Malvo Trial is Set for November," The Washington Post, 29 January 2003, p. B1. 28. Leo Fitzmaurice, "Man, 18, is Convicted in Slaying of Woman; She was Bound, Gagged, Pushed Off Bridge into River," St. Louis Post-Dispatch, 17 June 1994, p. 1C. 29. Jonah Goldberg, "Justice Kennedy's Mind," National Review, 9 March 2005. 30. "Excerpts of Supreme Court Opinion," Associated Press Online, 1 March 2005. 31. See: http://www.startribune.com/stories/1519/5269921.html 32. "Supreme Court Justice Antonin Scalia Delivers Remarks At the Woodrow Wilson Center for Scholars on Constitutional Interpretation," FDCH Political Transcripts, 14 March 2005. 33. Ibid. 34. "ACLJ Asks Supreme Court to Uphold Constitutionality of Ten Commandments in Kentucky Case," Business Wire, 8 December 2004. 35. Phone Conversation with U.S. Supreme Court Historian. 36. Bill Mears, "Ten Commandments Before High Court," CNN.COM, 1 March 2005 37. See: http://www.freerepublic.com/focus/f-news/1343936/posts 38. Valerie Richardson, "Colorado Ruling in Murder Case Angers Christians," The Washington Times, 30 March 2005, p. A5. 39. Ibid. 40. Jesse J. Holland, "Bush Sends Senate 20 Judicial Nominees," Associated Press, 15 February 2005. 41. "A Contradictory Biden," The Washington Times, 1 March 2005. http://washtimes.com/op-ed/20050228-084038-9235r.htm 42. "Meet the Press: Biden Will Oppose Scalia," NewsMax.com, 27 February 2005. http://newsmax.com/archives/ic/2005/2/27/165104.shtml 43. "GOP Jewish Group Hits Sen. Robert Byrd for Filibuster Remarks," Associated Press, 2 March 2005. http://www.freerepublic.com/focus/f-news/1354545/posts 44. FOX Special Report with Brit Hume, 1 March 2005. http://www6.lexisnexis.com/publisher/EndUserAction=UserDisplayFullDocument&org Id=574&topicId=100005814&docId=l:261749981&start=17 45. "Robert Byrd: The Minority Cannot Strangle Senate Business," The National Ledger, 4 March 2005. http://www.freerepublic.com/focus/f-news/1355962/posts 46. Opinion Journal, 2 March 2005. 47. Neil A. Lewis and Linda Greenhouse, "New Round of Speculation About Rehnquist's Farewell," New York Times, 22 February 2005, p. A10.
President Bush shakes hands with Texas Supreme Court Justice Priscilla Owen, his choice to serve on the U.S. Court of Appeals for the 5th Circuit, in the Oval Office Tuesday.
Liberals are mobilizing to fight antiabortion zealot Priscilla Owen's nomination to the Court of Appeals, but there's a long list of pro-life nominees queued up behind her.
By Michelle Goldberg
July 19, 2002 / The Bush administration is gearing up for its second big judicial confirmation battle, as the Senate prepares to hold hearings next Tuesday on Priscilla Owen, a conservative Texas judge whom President Bush nominated to the 5th Circuit Court of Appeals, one of the highest courts in the country.
Liberals have already scored one knockout, defeating Bush nominee Charles Pickering for the same appeals court in March, after opponents made sure charges of racism doomed the conservative federal judge and former state senator. Now, a comparable coalition of liberal groups has united to fight Owen, including the Texas AFL-CIO, the Texas NAACP and the Texas Gray Panthers. But none have been louder than pro-choice groups -- including the National Organization for Women, the National Abortion Rights Action League and Planned Parenthood -- because Owen is considered a formidable enemy of abortion rights, even by Texas Republican standards.
Whether Democrats come together to reject Owen as they did Pickering will indicate how hard they're prepared to battle to stop Bush from stacking the courts with what Sen. Charles Schumer, D-N.Y., has called "out-of-the-mainstream conservative ideologues." In May, Bush complained that the Democrats' failure to confirm his nominees was creating a judicial "vacancy crisis" in American courts. Schumer shot back: "Nominate ideologues willing to sacrifice the interests of many to serve the interests of a narrow few, and you'll have a fight on your hands. It's that simple."
Actually, it's not simple at all. Owen is at the center of a growing political firestorm over the role of ideology in the judicial selection process, and how far the Senate can take its constitutionally mandated charge to "advise and consent" on the president's nominees. She's just one of Bush's many deeply conservative picks for the federal bench. If all -- or even most -- of Bush's choices are confirmed, it will push the federal judiciary significantly to the right. Nowhere is that more clear than on the issue of abortion, which is paramount to partisans on both sides.
Meanwhile, Democratic senators, still smarting from the way Republicans derailed Clinton nominees during the last administration, want payback, but it's unclear how much political capital they're willing to spend to fight judges most of their constituents have never heard of.
So far, they've been dealing with Bush's more extreme picks by refusing to deal with them. When senators don't schedule hearings, "nominees just go off into limbo," says Sheldon Goldman, University of Massachusetts political science professor and author of "Picking Federal Judges: Lower Court selection from Roosevelt through Reagan."
The widely disparaged 9th Circuit ruling on the Pledge of Allegiance gave Republicans an opening to hammer on the Democrats to speed things up. "This is a good moment to shine the spotlight on where Democrats stand in terms of appointing activist judges," Republican National Committee spokesman Kevin Sheridan said at the time. "It's a wake-up call to the American people that certain Democrats, especially in the Senate leadership, have an agenda that may be out of step with the rest of America, that they stand in the way of judges that act only within the bounds of mainstream American legal opinion."
Now, though, things are starting to roll. The Senate just confirmed the passionately antiabortion, professionally unspectacular Lavenski Smith -- a virtual unknown with just a single year on the bench -- to the 8th Circuit. Bush's 22 circuit court appointees reflect a wide range of experience, including little-known legal names like Smith as well as respected scholars like Michael McConnell, but they all have one thing in common: A strident opposition to abortion.
With Owen's hearings next week, the furious behind-the-scenes political wrangling over judicial ideology is moving into the open.
"They've tried to kill all the nominees or delay them," fumed Phyllis Schlafly, the high-profile president of the conservative Eagle Forum and a diehard abortion opponent. "There's an unwillingness to admit that Bush won the election. He won and he can put forth his nominees and his ideas and legislative proposals whatever they are, and I see no reason why he has to moderate them in order to please the media or people in the Senate."
Public attention to the court's role in abortion is usually focused on the Supreme Court, and the question of whether nominees to the court will uphold Roe vs. Wade, the landmark 1973 decision that legalized abortion. But these days the most important battles over reproductive rights are being fought in state legislatures and, by extension, the district and circuit courts where statutes limiting abortion usually get their final hearings.
With Roe still standing, states aren't allowed to outlaw abortion entirely, but the 1992 Supreme Court decision Planned Parenthood of Southeastern Pennsylvania vs. Casey gave states the power to regulate abortion as long as they don't impose a vaguely defined "undue burden" on women.
Under that rubric, states have enacted hundreds of restrictions on both abortion providers and abortion seekers, including laws requiring minors to get parental consent, mandating waiting periods, extending doctors' liability and imposing onerous regulations on abortion clinics. Since the Supreme Court rarely accepts abortion cases -- it's only heard two in the last 10 years -- it's the circuit courts that are left to decide what an undue burden is.
Bush's 22 pending circuit court nominees can be expected to construe "undue burden" very narrowly, advocates say. Several aren't just antiabortion -- they're bona-fide pro-life activists, and they'll have enormous power to impose their views.
The dozen circuit courts of appeal are the second-highest courts in America. Each covers a multi-state region, and together they hear far more cases than the Supreme Court -- last term, the Supreme Court heard about 90 cases, the circuit courts 57,422. According to NARAL, if all of Bush's circuit court nominees are confirmed, by the end of the year 10 of the 12 courts will have antiabortion majorities, up from seven right now. "Day in and day out, the lower courts are the courts of last resort for most litigants," says Betsy Cavendish, legal director of the National Abortion Rights Action League.
For anyone seeking to protect abortion rights, the idea of Owen as a last resort is grim. She was described by the Houston Chronicle as being "stricter and more conservative than the majority of her all-Republican colleagues" on the Texas Supreme Court. In Texas, Owen had to hear so-called "Jane Doe" cases dealing with that state's parental notification law, which mandated that minors who couldn't go to their parents had to get permission from the court to get an abortion. She voted against Jane Doe in every case but one (in which she was ruling on a clear-cut procedural issue). In a case in which she dissented from the majority recommendation to allow an abortion, her colleagues -- Republicans all -- wrote that opposition to abortion "does not excuse judges who impose their own personal convictions into what must be a strictly legal enquiry."
Her ideology is mirrored by many of Bush's other nominees.
On Monday, the Senate confirmed the nomination of Lavenski Smith to the 8th Circuit. In addition to serving as the executive director of the Arkansas branch of the Rutherford Institute -- the Christian-right group that bankrolled Paula Jones' lawsuit against President Clinton -- Smith was a lawyer for the plaintiff in a case called Unborn Child Amendment Committee vs. Dr. Harry Ward, a suit to try to prevent abortions from being performed in public hospitals, even with private funds. In his failed run for the Arkansas Supreme Court, Smith received donations from a PAC whose sole purpose is to promote antiabortion candidates.
While working in the Colorado attorney general's office, Timothy Tymkovich, nominated to the 10th Circuit, fought a Medicaid statute requiring states to fund abortions for poor women if they were the victim of rape or incest. He lost in both the district court and the Court of Appeals, and his appeal to the Supreme Court was turned down. He also testified against the Medicaid statute before a Senate Governmental Affairs Committee.
Carolyn Kuhl, nominee for the 9th Circuit, wrote what a colleague described as an "aggressive" memo urging the Supreme Court to reverse Roe during her tenure in the Reagan administration Justice Department. As a private attorney, she filed a brief in the Rust vs. Sullivan case in support of the so-called "gag rule," a regulation that prohibits health workers who work at family planning clinics that get government funds from even mentioning abortion to their patients.
Even 10th Circuit nominee Michael McConnell, whom several law professors describe as among the most moderate of Bush's picks, signed a "statement of pro-life principle and concern" in 1996, calling for a constitutional amendment banning all abortions and saying, "Abortion kills 1.5 million innocent human beings in America every year. There is no longer any serious scientific dispute that the unborn child is a human creature who dies violently in the act of abortion ... Abortion kills: few would now deny that."
That statement outlined the antiabortion strategy of chipping away at abortion rights while waiting for Roe vs. Wade to be overturned. "In its 1992 Casey decision, the Supreme Court agreed that the state of Pennsylvania could regulate the abortion industry in a number of ways," the statement says. "These regulations do not afford any direct legal protection to the unborn child. Yet experience has shown that such regulations -- genuine informed consent, waiting periods, parental notification -- reduce abortions in a locality, especially when coupled with positive efforts to promote alternatives to abortion and service to women in crisis. A national effort to enact Pennsylvania-type regulations in all fifty states would be a modest but important step toward the America we seek."
Such rhetoric alarms abortion-rights activists because, if confirmed, McConnell and the other judges will be ruling on precisely such regulations, which in some states are already making it extremely difficult in a practical sense for women looking to end their pregnancies.
For example, many states have passed "Targeted Regulations of Abortion Providers," or TRAP laws, which impose impossibly detailed rules on abortion clinics, right down to the temperature the air conditioner must be set to. Dr. Mary E. Smith, the only abortion provider in Texas north of Dallas, operated for years undaunted by antiabortion harassment. Her home address, drivers license and the names and ages of her family members was published on the Nuremberg Files [ http://www.christiangallery.com/atrocity/ ] Web site, which advocates violence against abortion doctors. But Texas' TRAP laws finally made it financially impossible for her to continue providing abortions.
Nor are TRAP laws the only statutes threatening abortion access. Oklahoma is expected to appeal a district court decision that a law mandating parental consent was unconstitutional because it lacked provisions for judicial bypass and medical emergencies; the case would be heard by the 10th Circuit, to which Bush has nominated two strongly antiabortion judges.
The 7th Circuit is hearing a case called A Woman's Choice vs. Newman, which challenges an Indiana law requiring women to get information about abortion's risks, alternatives to the procedure and the size and viability of her fetus in a face-to-face meeting with a medical professional 18 hours before an abortion. Right now, women receive the information over the phone. According to Janet Crepps, staff attorney at the Center for Reproductive Law and Policy, for women who have to travel a long way to find a doctor who performs abortions, being forced to make two trips or stay overnight could be prohibitive.
"The district judge in that case found that the two-trip requirement would probably result in 10 percent of women being unable to obtain abortions," Crepps says. "For abused women, it's hard enough to get away once." Crepps doesn't know whether the 7th Circuit will uphold the Indiana law or not. "If you look at the court as a whole, it's fairly balanced between the more conservative judges and judges who may be willing to extend a fair amount of protection to abortion rights," she says. "In a circuit like that, one or two judges could make a huge difference."
Of course, whenever Democrats object to potential judges because of their views on abortion rights, Republicans call it a litmus test. "Personal views should be left at the courthouse door," says John Nowacki, director of legal policy at the D.C.-based Free Congress Foundation, a conservative group that's been a loud voice in favor of Owen. "When you get into this sort of ideological litmus test, it compromises judicial independence and hurts the idea of a fair judiciary. One of the biggest problems with the confirmation process right now is using this sort of a test. It's an excuse to openly politicize the process, and that can only hurt it."
The problem is that Democrats aren't the only ones with an abortion litmus test. Bush's conservative base expects him to pass over pro-abortion-rights candidates, and he seems to have made it a pivotal -- if not the pivotal -- issue in his selections. "We know that Clinton had a litmus test on that issue," says Schlafly. "We've got a new administration now, and I think we're entitled to go the other way."
And they have. "If there's anyone who's not hostile [to abortion rights], you'd have to wonder how the person snuck through," says Michael Gerhardt, a William and Mary School of Law professor who authored a book about the federal appointments process. "Hostility itself is an expectation, maybe even a condition."
In fact, Bush included a few moderates in his initial picks, renominating two circuit judges picked by Clinton, Barrington Parker and Roger Gregory, both of whom have since been confirmed. While Parker has issued rulings that anger abortion-rights activists, including a ruling that "the government may make a value judgment that supports childbirth over abortion," Gregory is considered pro-choice.
But since Gregory, not a single one of Bush's circuit court nominees have been supporters of abortion rights (at least not openly so). In fact, they've overwhelmingly come from the far right of the Republican Party.
"There is no question that George W.'s nominees are more uniform in their approach than either his father's or Clinton's," says Gerhardt. "There are a number of Reagan and George H.W. veterans who take a position that George H.W. Bush in particular did not do a good enough job in vetting ideology." Bush the son, he says, is correcting his father's moderation.
And since opposition to abortion has played a major role in getting these judges nominated, abortion-rights advocates say Democrats can't very well ignore the issue. After all, it's not simply that Bush is choosing judges who share his strict, literal interpretations of constitutional freedoms and who happen to be antiabortion. In some cases, their opposition to abortion is their qualification. While McConnell has a reputation for judicial restraint and scholarly brilliance, some of Bush's other picks are professional nonentities or judicial activists who tend to use the bench to override laws they disagree with -- exactly what Bush has said judges shouldn't do.
Lavenski Smith is obscure among his colleagues; he hasn't published a single book or article. During his hearing, he was criticized for failing to cite a well-known precedent that contravened the argument he made in his Unborn Child Amendment Committee case. The American Bar Association code of conduct requires lawyers to cite relevant legal authority; failing to do so might suggest a disregard for precedent.
Priscilla Owen also has a history of putting her beliefs before legal exactitude -- in one parental bypass case, Al Gonzales, her Republican colleague on the bench, called her position an "unconscionable act of judicial activism." Now White House counsel, Gonzales is responsible for promoting Owen's confirmation.
Unlike McConnell, Owen has not won the support of anyone except her ideological kin. According to Susan Hayes, a former clerk in the Texas Supreme Court who later represented abortion-seeking minors in front of Owen, "Her nomination really shocked a lot of Texas Supreme Court insiders, because she was not considered the best and the brightest. She has trouble keeping up with her workload. My biggest issue with her is her workload and the clarity of her opinions. Her job as an appellate judge is to make the law clearer for the lower courts. Her opinions are difficult to follow, and she's slow. If the White House is concerned about the backlog in the federal judiciary, she's not a very good pick."
And that's why Democrats haven't been moving terribly quickly to hold hearings and votes on some of Bush's judicial picks. While 58 of Bush's 106 nominees to the federal bench have been confirmed, the pace is slower for his circuit court selections, who are both more powerful and more controversial. Out of his 32 nominations, only 10 have gone through. Republicans are particularly incensed that seven of Bush's first 11 nominees have not yet had hearings.
"The committee has gone first to nominees where there is consensus," says David Carle, spokesman for Senate Judiciary Committee Chairman Patrick Leahy. "More controversial nominees take more time."
Things have also been stalled by the Bush administration's decision to cut the American Bar Association out of its historical role in vetting nominees, something Goldman described as a "radical and very counterproductive step." Because the Bar Association no longer checks out potential judges before they're put forward, the Senate has to do a review after they've been nominated, which takes about a month.
But there's no doubt that some Democratic delay is payback for the Republican Senate's blocking of an unprecedented 167 Clinton nominees -- which in turn gave Bush an inordinate number of seats to fill. The current Senate, says Hofstra University law professor Robin Charlow, "is not anywhere near as bad as the situation was with Clinton, where the judiciary was decimated."
"There's no question that ideology is playing a big role now," says Goldman. "For the Democratic senators, they feel that the Republicans rewrote the rules by holding up or vetoing Clinton nominees on the basis of ideology, and what's fair is fair. Traditionally, the Senate has not considered ideology a factor in the confirmation process, but that began to change during the Reagan administration and that has continued through to today. The Republicans ratcheted it up during the Clinton administration."
That has led to all-out political war over what was once seen as an impartial process. In a subcommittee speech, Schumer explicitly laid out the source of Democratic rancor. "They created a problem by not confirming qualified nominees. They propose to solve the problem by nominating out-of-the-mainstream conservative ideologues," he said. "Then they complain when we don't move quickly enough to implement their unacceptable solution. It's rank hypocrisy. There's no other way to put it. We're not going to be bamboozled into rubber-stamping a slate of [Antonin] Scalias and [Clarence] Thomases who, by any measure, are conservative activist judges. We're not going to be bullied into letting this administration stack the courts for decades to come."
Nevertheless, the Senate has moved forward with many of Bush's nominees, especially for lower courts. "Of the 70 or so nominees the Judiciary Committee has approved, nearly all are pro-life Republicans," says Carle. Among them are Jay Zainey, former chair of Louisiana Lawyers for Life, whom the Senate unanimously confirmed as district judge in Eastern Louisiana in February. Recently, Zainey dismissed the case of a woman who was imprisoned while pregnant and denied access to an abortion.
But since their power is much greater, circuit court nominees like Owen and McConnell are certain to be scrutinized much more closely.
Even some liberals insist the Senate should vet judicial nominees on a range of issues, most importantly their qualifications for the job, and not merely whether they agree with them politically. That's why several support Michael McConnell, though they disagree with him on the issues. "Bush is not going to appoint people who don't agree with what he says, and he himself is very conservative," says Charlow, who specializes in religion and the constitution. "It's very unlikely he's going to name somebody who thinks abortion is a good idea. No matter who he names, they're probably not going to be personally in favor of abortion rights. The issue for me is not whether they're in favor of abortion rights or not, it's how crazed they are."
She says that McConnell, for example, "is not a crazy person. He's not going to go out of his way to distort the law, and he doesn't assume that everything he believes politically is the law." Though she's pro-choice and describes McConnell as far more conservative than she is, she says, "I would not hesitate for a minute to confirm him."
But nobody beyond the right seems to be buying the notion that the president's nominees deserve the benefit of the doubt simply because they are his nominees.
"The argument from the current Bush administration's point of view is that somehow a president's nominees are clothed with a presumption of confirmability," Gerhardt says. "I don't know that that's true. He asked for deference precisely because he's the president and he chooses them, but he chooses them on specific criteria and then tries to dictate the terms on which the Senate will review them. The senators have an equal voice in this process."
Let the shouting begin.
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About the writer Michelle Goldberg is a staff writer for Salon based in New York.
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