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Race, Sex & Roe
The judicial storm in the Senate.


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Peter Kirsanow

Professor Steven Calabresi of Northwestern University Law School maintains that the Democrats’ unprecedented filibuster of federal appellate-court nominees is driven by the party’s imperative to retain its political advantage with minorities and women. Professor Calabresi notes that nominees such as “Miguel Estrada, who is Hispanic, Janice Rogers Brown, who is African American, Bill Pryor, a brilliant young Catholic, and two white women, Priscilla Owen and Carolyn Kuhl.” are victims of Democrats’ determination “not to allow any more conservative African-Americans, Hispanics, women or Catholics to be groomed for nomination to the High Court with court of appeals appointments.”

On the other hand, John Leo contends that the judicial filibuster threat is all about abortion politics.

Each is partially right.

Calabresi correctly notes that conservative black, Hispanic, Catholic, and female judicial nominees “drive left-wing legal groups crazy.” These nominees are drawn from groups Democrats view as part of their natural constituency–a demographic political entitlement of sorts. Elevating such nominees to highly visible judicial posts would highlight the fact that there are political alternatives for minorities, women, and Catholics other than the Democratic party. If the example of Janice Rogers Brown (along with non-judicial appointments such as Condoleezza Rice, Colin Powell and Alphonso Jackson) can convince a mere ten percent of the black electorate to consider switching allegiances to the GOP, the Democratic party will go the way of the Whigs.

Consequently, the most vigorous Borking is often reserved for minorities. A memo to Senator Richard Durbin unearthed during the Senate “Memogate” controversy identified Estrada as “especially dangerous” because “he is Latino.” During his confirmation process, he was vilified as “inauthentic” and “Hispanic in name only.” Despite impressive credentials, he was dismissed as inexperienced and unqualified.

Similarly, Janice Rogers Brown has been called a female Clarence Thomas (this is supposed to be a bad thing) and out of the mainstream. She has been caricatured as a right-wing extremist despite the fact that she has been reelected to the supreme court in the state of California, the electorate of which is hardly radically conservative, by an astonishing 76 percent of the vote. If the objective consensus regarding Judge Brown could be reduced to three words, they would be: sober and brilliant.

But while minority and female Republican judicial nominees may stir the most vehement opposition, is their disparate treatment truly based on race or sex? The fact that similarly situated white males are being forced to run the same gauntlet as Estrada, Brown, and Owen, suggests that race and sex are not the only reasons for the opposition. Indeed, several white male GOP nominees also have been subject to the filibuster threat: Terrence Boyle, William Pryor, William Meyers, and Brett Kavanaugh.

This is where Leo’s thesis comes in. While Calabresi notes that Democratic trepidation about Catholic nominees may be fueling the Pryor filibuster threat, Leo asserts that it’s actually a nominee’s demonstrated or suspected stance on abortion, not the nominee’s religion, that dictates whether the threat will be invoked. And although it’s true that an abortion litmus test may have a disparate impact on faithful Catholics, the same could be said for Evangelicals, Muslims, and Orthodox Jews (and for that matter, agnostic textualists).

Special vituperation, however, seems to be reserved for minority nominees suspected of being pro-life. Estrada, Rogers Brown, Claude Allen, and Levanski Smith were/are among these apostates. Pro-life minority nominees represent the perfect storm for Left-leaning opposition groups: non-conformist role models from the Left’s most reliable voting blocs who may one day be in a position to reconsider Roe v. Wade. Better to filibuster them than to have a televised debate on the Senate floor that might raise interesting and useful questions concerning the merits of monolithic minority support for one party or an unyielding defense of Roe.

This time it’s liberals who are standing athwart history yelling “Stop!” We should know in a couple of weeks whether they’re successful.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights. These comments do not necessarily reflect the position of the Commission.



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