On Thursday the Senate will vote on a motion to end debate on the federal appeals-court nomination of William Pryor. If Republicans prevail, the Senate will then move to an up-or-down vote on Pryor’s confirmation. It’s far more likely, however, that Democrats will block a confirmation vote, beginning a filibuster of Pryor’s nomination. Pryor will then become the third Bush appeals-court nominee, along with Miguel Estrada and Priscilla Owen, to face a Democratic filibuster. In one sense, Republicans are grateful it has come to that. For a while, some in the GOP were concerned that Pryor, currently the attorney general of Alabama, might face not filibuster but defeat. The worst-case scenario was that the Senate Judiciary Committee would approve the nomination on a straight party-line vote and Democrats would then not filibuster Pryor, instead calling for a quick vote on his nomination. GOP leaders worried that moderate Republicans Olympia Snowe, of Maine, and Lincoln Chafee, of Rhode Island, and perhaps one or two others, might join Democrats in defeating the Pryor nomination outright.
That won’t happen now. In recent weeks, Republican leaders have persuaded the moderates to support Pryor; there would not have been a vote in the Judiciary Committee last week had the GOP leadership not been confident that Pryor would be supported by all 51 Republican senators. Given that confidence that Pryor would be confirmed if a vote were held, it seems safe to say with equal confidence that Democrats will not allow the vote to go forward.
While that might appear to be the main story, there is something far more momentous going on in the fight over the Pryor nomination, something that might mark a turning point in the increasingly contentious struggle over judicial confirmations. For the first time in the Bush administration, Republicans, faced with united Democratic opposition, have dramatically changed the subject — and tone — of the debate over a judicial nomination, turning the tables on Democrats and reshaping the argument to the GOP’s advantage.
In previous confirmation fights, Democrats have controlled the agenda and the course of debate by making a variety of allegations against the president’s judicial nominees. They accused Charles Pickering of racism. They accused Priscilla Owen of being a judicial activist. They accused Miguel Estrada of hiding his opinions on important legal matters. In each instance, Democrats played offense, and Republicans played defense.
The Pryor nomination began in the same way. At first, Democrats accused Pryor of being an extremist on abortion and other issues. Then they alleged that Pryor improperly sought political contributions for a group he helped create, the Republican Attorneys General Association. GOP senators, as they had many times in the past, found themselves defending a nominee by saying he was not an extremist and had not done anything wrong.
But then Republicans changed course. They leveled an accusation of their own against Democrats, accusing them of opposing Pryor because of his religious beliefs. Pryor is a Catholic who opposes Roe v. Wade both on constitutional grounds and because he believes that abortion is morally wrong. In recent weeks, Republicans accused Democrats of using coded language when questioning whether Pryor’s “deeply held beliefs” would interfere with his judgment on the bench. Such language, Republicans said, was in fact an indirect way of condemning Pryor for being a faithful Catholic. That, Republicans concluded, amounted to a virtual religious test for judges, something forbidden by the Constitution.
To spearhead the attack, a Republican interest group, the Committee for Justice, funded in part by a Catholic political-action committee, the Ave Maria List, ran a newspaper advertisement that featured a photo of a door marked “Judicial Chambers” with a sign that said, “CATHOLICS NEED NOT APPLY.” “Some in the U.S. Senate are attacking Bill Pryor for having ‘deeply held’ Catholic beliefs to prevent him from becoming a federal judge,” the ad said. “Don’t they know the Constitution expressly prohibits religious tests for public office?”
The GOP campaign knocked Democrats back on their heels, and last week’s debate in the Judiciary Committee turned into a bitter argument in which Democrats, almost beside themselves with anger at having their motives challenged, accused Republicans of injecting religion into the confirmation process. Questions of Pryor’s alleged extremism and alleged improper fundraising took a back seat as frustrated Democrats defended themselves against Republican charges of anti-Catholic bias.
For Republicans, it was a brilliant turnaround. But it came at some cost. To turn the tables on Democrats, the GOP had to resort to the kind of interest-group-sensitivity attack they have condemned when Democrats used them against Bush nominees. For example, the GOP’s accusations of Democratic anti-Catholicism are strikingly similar to oft-repeated Democratic charges that Republican nominees are “insensitive” to issues of civil rights.
The problem with such charges is that they are almost always phony. There is no more evidence that Democrats on the Judiciary Committee are anti-Catholic than there is evidence that Republican nominees are racists or judicial activists or religious zealots.
In addition, the Republican counterattack led to an extraordinary and uncomfortable scene in the Senate Judiciary Committee hearing room, in which members of the committee engaged in a semi-theological debate over what “good Catholics” do or do not believe. Democrats were aghast, but had little room to complain, since on many occasions in the past their own tactics created other extraordinary and uncomfortable scenes over other inappropriate allegations. Last week, they found themselves the target. One might say it couldn’t have happened to a nicer bunch of guys.
But some Republicans were uncomfortable as well, and were left wondering: Where would this new strategy lead? To win a momentary advantage on Pryor, Republicans had acted like Democrats at their worst. And no one was terribly happy about that.
CATHOLICS NEED NOT APPLY?
When chairman Orrin Hatch opened the committee debate on Pryor last week, it seemed as if the issue of the day would be Pryor’s fundraising for the Republican Attorneys General Association, better known as RAGA. Democrats had alleged that Pryor asked for political contributions from companies that had business before his state attorney general’s office. Democrats also accused Pryor of lying about the fundraising during his confirmation hearing on June 11.
Hatch laid out a solid defense of Pryor. A committee investigation had failed to find any companies that were improperly solicited, he said. In addition, when the committee asked Pryor’s accuser, a former RAGA employee, to submit to an interview, she declined to answer questions until she got a lawyer. Then, when she got a lawyer, she again declined to answer questions. Finally, Hatch said, Pryor had offered himself for interviews with the committee, but Democrats, on more than one occasion, had declined to ask him any questions.
Despite their failure to find evidence of wrongdoing, committee Democrats demanded that a vote be delayed so the investigation could continue. “To vote on Pryor would put him before the Senate with a ticking ethical time bomb,” said Massachusetts Democrat Ted Kennedy. Other Democrats made similarly ominous predictions. But Hatch was adamant. “This has been investigated out the wazoo,” he said. “It’s time to vote.”
If that had been the end of it, the Pryor debate would have been nothing particularly unusual in the course of the ongoing battle over Bush nominees. But in his opening statement, Democratic Sen. Patrick Leahy of Vermont turned the discussion in another direction when he angrily brought up the issue of religion and the “CATHOLICS NEED NOT APPLY” ad.
“One aspect of the recent debate on which I hope we can get closure today is the unfounded charge leveled most recently by special interest groups that Democratic senators are ‘anti-Catholic,’” Leahy said. “The charge is despicable….I trust that our Republican colleagues, who are so quick to castigate policy groups that dare to oppose any nomination, and who are so prone to categorically condemn every critical statement concerning any Republican nominee as a partisan smear, will today, finally, condemn this ad campaign.”
“This smear is a lie,” Leahy concluded, “and it depends on the silence of others to survive.”
Republicans, however, declined to disavow the ad, which seemed to anger Democrats more. Illinois Sen. Richard Durbin, in particular, seemed infuriated as the discussion went on. “As a person who was raised Catholic and is a practicing Catholic,” Durbin said, “I deeply resent this new line of attack from the right wing that anyone who opposes William Pryor is guilty of discrimination against him because he is a Catholic.”
Besides, Durbin contended, many Catholics disagree with Pryor on abortion. “Many Catholics who oppose abortion personally do not believe the laws of the land should prohibit abortion for all others in extreme cases involving rape, incest, and the life and health of the mother,” Durbin said.
Durbin soon found himself in a hostile exchange with Pryor’s most ardent supporter — and home-state senator — Jeff Sessions of Alabama. “The ranking member [Leahy] protests that he is not anti-Catholic and he’s offended that anyone suggested that he is,” Sessions said. “Well, let me tell you, the doctrine that abortion is not justified for rape and incest is Catholic doctrine. It is a position of the pope and it’s a position of the Catholic Church in unity. So are we saying that if you believe in that principle, you can’t be a federal judge? Is that what we’re saying? And are we not saying, then, good Catholics need not apply?”
“As a Catholic, I sit here in resentment of what I am hearing,” Durbin said. He then sarcastically thanked Sessions, who is not a Catholic, for explaining Catholic doctrine to those who are Catholics.
“Some Catholics don’t believe in Catholic doctrine,” Sessions answered.
DEEPLY HELD BELIEFS
Even though Pryor has expressed strong opinions on issues like federalism and laws like the Violence Against Women Act, no one on the committee pretended that the argument over his “deeply held beliefs” was about anything other than abortion. Pryor has made a number of statements about the issue over the years. He has called Roe v. Wade “the worst abomination in the history of constitutional law.” He has said that “On January 22, 1973, seven members of [the Supreme Court] swept aside the laws of the fifty states and created — out of thin air — a constitutional right to murder an unborn child.” And at his June 11, confirmation hearing, he said that Roe has “led to the slaughter of millions of innocent, unborn children. That’s my personal belief.”
Throughout Pryor’s hearing, Democrats quoted those statements in an attempt to show that Pryor’s personal convictions would color his judicial actions. Last week, Republicans pointed to those Democratic questions as evidence that Democrats were using coded language to suggest that Pryor’s Catholicism disqualified him for a seat on the federal courts of appeals. After the committee vote, GOP staffers distributed a series of quotations, all from committee Democrats, which Republicans suggested were evidence of Democratic anti-Catholic bias. Among them:
From New York Democrat Charles Schumer: “In General Pryor’s case his beliefs are so well known, so deeply held, that it is very hard to believe, very hard to believe, that they are not going to deeply influence the way he comes about saying, ‘I will follow the law…’”
From Schumer: “Based on the comments Attorney General Pryor has made on this subject [abortion], I have got some real concerns that he cannot [judge fairly on abortion-related issues], because he feels these views so deeply and so passionately.”
From Massachusetts Democrat Edward Kennedy: “I think the very legitimate issue in question with your nomination is whether you have an agenda, that many of the positions which you have taken reflect not just an advocacy but a very deeply held view and a philosophy…”
From California Democrat Dianne Feinstein: “Virtually in every area you have extraordinarily strong views which continue and come out in a number of different ways. Your comments about Roe make one believe, could he really, suddenly, move away from those comments and be a judge?”
Republicans and their supporters argue that those comments and others amounted to little more than veiled references to Pryor’s religion. “They have criticized Pryor on his deeply held personal beliefs,” says Sean Rushton, executive director of the Committee for Justice, “and those concern issues that are clearly related to his faith convictions.” To address that alleged anti-Catholicism, the Committee for Justice, along with the Ave Maria List, created the “CATHOLICS NEED NOT APPLY” ad.
Although the headline is clear and hard-hitting, the text of the ad is more nuanced. When it says, “Some in the U.S. Senate are attacking Bill Pryor for having ‘deeply held’ Catholic beliefs to prevent him from becoming a federal judge,” it seems to suggest that Democrats have attacked Pryor for being a Catholic. But the ads uses quotation marks carefully; it says “‘deeply held’ Catholic beliefs” instead of “‘deeply held Catholic beliefs’” because no Senate Democrat has attacked Pryor for his deeply held Catholic beliefs. The ad suggested anti-Catholicism without actually identifying it.
Besides, the criticism of Democrats’ use of the phrase “deeply held beliefs” to describe Pryor’s opinions seems misdirected at best. On the subject of abortion, Pryor has used the words “murder” and “slaughter.” Those words are clear indicators that he does indeed have deeply held beliefs — something he would never deny. It would, in fact, strain credulity to describe Pryor’s beliefs as anything other than deeply held.
The real issue has always been whether Pryor would allow his personal beliefs to affect his judicial decision-making. He has said that he would not, and points to his record as Alabama attorney general to show that he has in the past separated his personal beliefs from his professional obligations. In fact, Pryor would never have been able to be so candid with the committee about his personal beliefs had he not also been able to cite his record as solid evidence that he would follow the law. It was, perhaps, Pryor’s most powerful argument for himself, one that Democrats were never able to counter.
At last week’s committee debate, Democratic aides brought out a large blow-up of the “CATHOLICS NEED NOT APPLY” ad, which aides held up as Leahy, Durbin, and others condemned Republicans. Most GOP senators, presumably, had seen the ad. But at one point in the hearing, Georgia Republican Saxby Chambliss, a new member of the committee, asked an assistant to bring the poster to him. Chambliss stood reading the ad with a slightly pained expression on his face. “I don’t know who ran that ad, but I certainly don’t agree with it,” he said a few minutes later.
Chambliss was the only Republican on the committee to express doubts about the ad. But since the meeting, a number of Republicans and their supporters appear to have backed away from the ad’s “CATHOLICS NEED NOT APPLY” premise.
When a Washington Post editorial called the ad “wildly inappropriate” and concluded, “We have criticized liberal groups for smearing President Bush’s nominees. Smearing senators is no better,” the Committee for Justice responded with this statement, e-mailed to supporters and the press:
The Committee for Justice is not accusing any Senator of being intentionally anti-Catholic. We are charging Senate Judiciary Committee Democrats with establishing a litmus test that would exclude people of orthodox religious beliefs — Jew, Christian, and Muslim alike — from the courts. When a devoutly religious nominee’s “deeply held personal beliefs” are repeatedly cited as grounds for rejecting him, even when his public record shows the ability to distinguish personal from legal judgment, we think it warrants public criticism.
While that might be a legitimate point about Jewish, Christian, or Muslim beliefs, it is simply not what the “CATHOLICS NEED NOT APPLY” ad said. And in an interview with NRO, Sean Rushton, the executive director of the Committee for Justice, appeared to step back even further, from the idea that alleged Democratic anti-Catholicism is either systematic or widespread.
Asked whether he believed Miguel Estrada is being filibustered because of anti-Catholic bias, Rushton said, “I’m not sure that he is. I don’t remember him being criticized for his deeply held personal beliefs.”
Asked whether Priscilla Owen is being filibustered because of anti-Catholic bias, Rushton said, “With her, it was more that she was accused of being a judicial activist — and being pro-business.”
Asked whether Carolyn Kuhl faces Democratic opposition because of anti-Catholic bias, Rushton said, “No, not necessarily.”
One might also ask whether Charles Pickering faces Democratic opposition because of anti-Catholic bias. Or whether John Roberts or Terrence Boyle or David McKeague or Susan Neilson or Henry Saad or Richard Griffin face Democratic opposition because of anti-Catholic bias. In each case, the answer appears to be no.
In private conversations on the Hill, some Republicans now steer away from the charges. “No one is suggesting that Democrats have an anti-Catholic bias,” one Republican explains. “What people are saying is that their litmus test on abortion creates a de facto religious test. No one thinks they are actively trying to discriminate against Catholics.” Nevertheless, no committee Republican, other than Chambliss, has publicly expressed disapproval of the “CATHOLICS NEED NOT APPLY” ad.
THE POLTICAL PAYOFF
Even though some Republicans seem uncomfortable with the ad’s direct, unambiguous attack, many are undoubtedly happy with its effect. The depth of Democratic anger showed that the ad had gotten under the Democrats’ skin, something many Republicans found deeply satisfying.
Even better for the GOP, the ad helped associate the image of Democrats with the idea of hostility to religious faith. “Democrats feel particularly vulnerable to being portrayed as anti-religious, and that’s why they’re angry, because this has the possibility of hurting them,” says one veteran participant and observer of the judicial wars. “Republicans know this. You throw the charge out there and it’s hard for Democrats to respond in a positive way. They have to say, ‘No, we’re not that way.’”
And that is a losing proposition. Democrats know that because they’ve used the tactics themselves many times over the years. How many conservatives have they portrayed as racists or sexists or right-wing nuts unqualified to occupy a seat on the federal bench? No wonder Democrats are angry. They know how effective such attacks can be, and now they find themselves on the receiving end.
There is another, more immediate, political advantage for Republicans. The controversy surrounding the issue has brought increased mobilization of Catholic voters. “The reason the ad struck such a chord was that there is a history to that sign,” says one Republican, referring to anti-Catholic discrimination in the past, as well as continuing Catholic sensitivity to the issue today. “The religious test issue is now fully joined.”
Republicans are working closely with some Catholic organizations to press the debate. “The issue is playing very well in the Catholic press and in Catholic e-mail alerts,” the Republican says. “You tap into an entire community that has its own press, its own e-mail systems, and that has been tenderized by anti-Catholicism, which they consider to be the last permissible bias in America.”
Given the political calculations involved, it seems unlikely that the issue will go away. Yes, some Republicans worry that scenes like last week’s religious debate are not a particularly appropriate way for the Senate Judiciary Committee to spend its time. “Is it a good and seemly thing for them to be having this debate on religion in the committee?” asks one. “No.” But Republicans argue that the party’s leaders and supporters have simply been pushed to the limit by the Democratic campaign to stop the president’s judicial nominees. At some point, Republicans had to fight fire with fire.
As they press the “anti-Catholic bias” campaign, Republicans remember the 1980s and early 1990s, when Democrats, in the Bork and Thomas fights, embarked on a course of take-no-prisoners judicial warfare. Ever since then, Republicans have been of two minds about how to respond. “There’s always a debate over whether we should try to be above it all or whether we should get in the trenches and fight like they do,” says the veteran of judicial battles. With the “anti-Catholic bias” accusations, Republicans have made their decision.