THERE CAN scarcely be said to have been a time when ideology did not play a major role in the workings of the U.S. judiciary. It's always been a keen interest of politicians to gauge the political leanings of judges all the way from the local magistrate to the Supreme Court. Legislatures and electorates are loath to appoint judges who represent political outlooks they consider unacceptably distant from their own. This is a basic fact of political life that will never change. But the current furor that Senate Republicans and their foot soldiers in the conservative press are raising about the reluctance of Democrats to confirm their judicial nominees isn't so much a failure to grasp this principle as it is a wager that the American public, as poorly informed as it is, won't take notice. If they did, and actually witnessed the behavior of the current Republican majority, even most Republican voters would be forced to shake their heads in disgust.
In states where judges are elected to office, judicial candidates generally run on moderate platforms so as to appeal to as large an electorate as possible -- just like candidates for other offices. Accordingly, where judges are appointed by a legislature, the majority party is usually required to recruit the support of at least some in the minority to pass the appointment motion. They usually accomplish this by nominating judges who are relatively moderate for the political climate -- thus, judges in the South tend to be more conservative than those in New England or the Pacific Northwest. This reflects the different political trends in various parts of the country, a testament to the democracy in which we live.
But sometimes, a majority party will nominate a person whose political views are simply too radical for the other side to accept. For example, in 1987 Republicans nominated Robert Bork, a right-wing federal jurist whose ultra-conservative opinions and political views had earned him national infamy. "Dangerous" cannot adequately describe how close America actually came to confirming Bork, who the Washington Post described in an October 5, 1987 editorial as having "retained from his academic days an almost frightening detachment from, not to say indifference toward, the real-world consequences of his views." Based on his judicial opinions, Bork's views would have ended a woman's right to abortion, permitted racial segregation, allowed states to ban the teaching of evolution and furthered other similar goals of the conservative movement.
Bork's narrow defeat in the Senate, thanks to Democratic opposition, was one of the fiercest battles in the culture wars of the 1980s. In the aftermath, President Reagan settled for the successful nomination of Anthony Kennedy, whose opinions, while still conservative, were nonetheless much more moderate than those of Bork.
Republicans today still haven't learned that radical candidates aren't acceptable. Trent Lott, Orrin Hatch, Don Nickles, Rick Santorum and the rest of the super-conservative, wealthy white Republican club in the Senate who bottled up the confirmation of a broad array of judicial nominees under the Clinton administration are now in hysterics over the Democratic opposition to a few of their own nominees. Although the rate of confirmations for Republican-nominated judges was actually higher while Democrats held a Senate majority (according to the Republican-aligned confirmation watchdog group The Committee for Justice), Republicans -- again, the same ones who all but halted the confirmation process under President Clinton -- now accuse Democrats of dragging their feet. And worse.
Recently, Republicans have unveiled a new and ironic method of attacking Democrats who oppose their judicial nominations. Members of the GOP, the party that opposes affirmative action, wants to return Christian prayer into schools, eagerly courts racist and homophobic voters and has actively campaigned against the enforcement of civil rights for over half a century, are actually calling Democrats prejudiced. Beginning in July, Republicans began running TV ads calling Democrats anti-Catholic for opposing the nomination of Alabama Attorney General William Pryor (a Catholic). This was closely followed by accusations of Democratic anti-Southern attitudes for opposing Charles Pickering's nomination. Finally, conservatives accused Senate Democrats of outright racism for opposing the nominations of Miguel Estrada and Janice Rogers Brown. If the irony were any thicker, I would need a knife.
If a Democratic filibuster is the only way to block the confirmations of radically conservative Republican nominees, then our country will be all the better for it. Republicans must eventually live up to that basic political reality: nominating extremists with the full knowledge that the minority party will never accept them is not the way to fill urgent vacancies in the federal judiciary. Rather, it's a cheap political scheme designed to serve as an issue in the hotly contested upcoming election. It's a long shot, but for the sake of the integrity of our justice system, let's hope the Republicans try putting good governing before political expediency.
(Blair Reeves's column appears Mondays in the Cavalier Daily. He can be reached at breeves@cavalierdaily.com)
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