Democrats must block right-wing judges

January 01, 2003|By Benjamin Sachs

WASHINGTON - The outcry over Sen. Trent Lott's shameful comments was well deserved, and his forced resignation as majority leader signals Americans' firm consensus that there is no part of our history more odious than segregation.

But it would be a serious mistake to let the resolution of Mr. Lott's political future distract us from the longer-term struggles over principles such as states' rights that the recent midterm elections make necessary. These elections did more than restore Mr. Lott to his position as Senate majority leader, and Democrats in Congress should heed the anger over Mr. Lott's words as a call to fight for principles that, for many Americans, define our nation.

These principles will be threatened by the Bush administration's attempt (now aided and abetted by a Republican-controlled Senate) to stack the federal courts with right-wing ideologues.

The risks are grave, as it is the courts - more than Congress or the White House - that could revive states' rights and prevent Congress from offering effective protections to minorities, women, working people and the elderly.

The federal courts could also limit or overrule Roe vs. Wade and jeopardize a woman's right to choose, and expand property rights in a manner that would eviscerate environmental protections.

There are several ways the Democrats could head off judicial disaster.

First, Senate Democrats should immediately demand that Mr. Lott's candidate for the federal court of appeals, Charles Pickering, not be renominated. Mr. Pickering was blocked last year by the Democratic-controlled Senate Judiciary Committee after it emerged that he bent the law and abused his role as trial judge in order to give a lenient sentence to a cross burner.

Second, the Senate Democrats must fight to preserve the longstanding "blue slip" prerogative through which senators can withhold approval of judicial nominees from their home states.

During Bill Clinton's presidency, the Republicans used the blue slip to block countless nominations. But now that the GOP controls the White House, Sen. Orrin Hatch of Utah is shamelessly suggesting that he will ignore the blue slip rule and give Mr. Bush carte blanche on court of appeals judges. The Democrats must demand that Mr. Hatch treat blue slips today exactly as he treated them during the Clinton years.

Third, the Democrats must maintain a strong presence on the Senate Judiciary Committee. It is essential that those most committed to a balanced federal bench remain on the panel. Democratic Sen. John Edwards of North Carolina earned his stripes through forceful questioning of Mr. Bush's nominees during several confirmation hearings (including Mr. Pickering's). He has shown backbone by refusing to return the blue slip for Terrence Boyle, who was nominated for a seat on the 4th U.S. Circuit Court of Appeals.

Mr. Edwards also asks hard questions and elicits productive answers from nominees, skills that are badly needed on the committee.

But as the most junior Democrat on the panel, Mr. Edwards may lose his seat to a more senior - but less active - Democrat. The committee needs Mr. Edwards, and the Democratic leadership must take the steps necessary to ensure that he can stay and fight.

Fourth, committee Democrats must respond to the partisan obstructionism practiced by the Republicans during the Clinton presidency. Then, the GOP blocked at least 12 highly qualified appeals court nominees simply in order to maintain vacancies for a Republican president. As a result, Mr. Bush now has more seats to fill.

But this is an unacceptable abuse of Senate power. The Democrats should demand that Mr. Clinton's blocked nominees get confirmed before Mr. Bush puts another conservative ideologue on the bench. Until this happens, Senate Democrats should use whatever tools are available to them to keep Mr. Bush's ideological nominees off the courts.

Finally, if and when Mr. Bush nominates a new Supreme Court justice - a very real possibility, given the likely retirements of either Justice William H. Rehnquist or Justice Sandra Day O'Connor (or both) - the Democrats should filibuster, if necessary, any extremist nominees.

Neither the president nor the GOP in Congress has the public's approval to stack the courts with right-wing ideologues, and it is up to the Democrats to make sure that this does not happen.

Benjamin Sachs is a labor attorney in Washington.

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