Just before November 2002, Senate Republicans used the Senate floor, the Judiciary Committee, press conferences, and activist activity to spotlight Democratic tactics opposing Circuit Court nominees Miguel Estrada, Priscilla Owen, Charles Pickering, and Dennis Shedd. Just two weeks before the election, the president gathered the press corps and the legal community in the East Room to punctuate the point.
In 2003 and into 2004, Senate Republicans forced floor debate after floor debate, used committee showdowns, and catalyzed the media to press the cases for Estrada, Owen, Pickering, Janice Rogers Brown, Carolyn Kuhl, and Bill Pryor. Conservative advocates and the press amplified these debates in the run-up to the ’04 election.
Not now. This November will be the first election year since 2000 that no significant Senate debate over judicial confirmations will spark a voter response. If Senate leaders do not rethink their strategy, fewer voters will be considering judicial confirmations when they vote for Senate candidates on November 3rd. It is a huge mistake. It is an avoidable mistake.
The evidence of the judicial issue’s power to help Republicans is well established. In 2002, GOP contenders Wayne Allard (Col.), John Cornyn (Tex.), Jim Talent (Mo.), Saxby Chambliss (Ga.), Lindsey Graham (S.C.), Elizabeth Dole (N.C.), and Norm Coleman (Minn.) all campaigned against Democratic blockage of nominees. For months prior to the election, Senate Republicans polling showed that judicial obstruction was in the top-three negatives counting against Democrats. Speaking of 2002, White House strategist Karl Rove said, “There’s no doubt in my mind that we won races all throughout the country” on the issue. He told the Washington Times that, “We won the Senate race in South Carolina — judges; won the North Carolina race — judges; won the Georgia race — judges.”
In 2004, Republican candidates, led by President Bush, cited the need for judges who wouldn’t “make law from the bench” and the ten filibusters of Circuit Court nominees (out of 34), as a key reason to vote GOP in November. Tom Daschle antagonist John Thune used the issue to great effect against the Democratic Minority Leader. Rove has said that voters responded enthusiastically whenever Mr. Bush invoked the issue. Recently, respected political analyst Larry Sabato pointed out that the judge issue “was one of Bush’s best issues in the campaigns of 2000 and 2004.”
Senate Republican candidates this year will no doubt run on past judicial accomplishments: confirmation of two excellent constitutionalists to the Supreme Court last fall and winter, and breakthrough successes, thanks to the threat of the “nuclear option,” allowing passage of Rogers-Brown, Owen, Pryor and others.
But laurels wither. There is nothing like a currently simmering controversy — in the nation’s great debating society, the U.S. Senate – to arouse voters anew. The judicial issue has shown its power not only to turn out conservative voters, but to swing moderates to the GOP, whether through appeal to unpopular rulings on private property rights, marriage, and “Under God” in the Pledge of Allegiance, or through simple disgust with Democratic obstruction and name calling. Judicial confirmation battles pay dividends by putting Sens. Ted Kennedy and Chuck Schumer, plus liberal interest group heads such as Ralph Neas and Nan Aron, front and center in the public eye before Election Day.
It’s late, but not too late, to focus the public on what is at stake with judicial confirmations. Long delayed nominee Jim Haynes — currently described by Senate leaders as “dead” thanks to Republican Senator Lindsey Graham’s (S.C.) decision to join Democrats in obstruction — is a twofer: He encapsulates not only the debate over the courts, but the fundamental difference between the liberal and conservative visions of the War on Terror. The charges against Haynes, the Defense Department’s general counsel, are completely overblown. As one writer put it, Haynes is blocked “because of a memo [on detainee treatment] that he not only did not write but also did not adopt without significant modification, and [he is] being blamed for “torture” in a place to which the memo did not even apply, against the rules [Haynes] approved, carried out by people completely unaware of the memo, which memo itself did not, repeat not, express an approval of torture.”
Republican acquiescence in the Haynes debate not only denies a qualified nominee his seat, but implies the critics’ characterization of the administration’s war tactics is accurate. This is a debate worth having.
Ninth Circuit nominee William Myers is blocked by California Democrats Dianne Feinstein and Barbara Boxer at the behest of the environmental lobby and its financiers, the trial lawyers. Liberal environmentalists versus a private-property-rights advocate? In the year since the Kelo decision, an entire grassroots property-rights movement has sprung up around this issue. This is another winning debate that the GOP isn’t having.
Circuit-court nominee Mike Wallace is a conservative, Harvard-educated lawyer with three decades operating at the highest levels of government and corporate law. But, two members of the American Bar Association’s leadership have political vendettas against him dating back to the 1980s. Result? The ABA has rated Wallace “not qualified.” The Wallace debate not only puts the Democrats on defense, it will allow conservatives to expose one of their favorite bete noires, the liberal, elitist ABA. Wallace is another obvious, worthwhile fight to push.
Finally, there’s the record-setting obstruction of Terrence Boyle to the Fourth Circuit, nominated five years ago and on the Senate floor for more than one year. This journeyman jurist has been attacked from the usual corners, particularly organized labor, and unfairly accused of significant financial improprieties. None of these charges hold water on serious review, and are really proxies for partisan vendettas against Boyle’s former boss, Jesse Helms. How to unmask Boyle’s opposition? A vigorous debate.
Republicans needs to think long-term. In 2002, committee blockage of Charles Pickering on false charges of racism was converted into a political asset, especially in the south. Miguel Estrada’s obstruction helped the GOP among Hispanics. A poll indicated that 87 percent of Latinos believed that the Honduran immigrant deserved an up or down vote. Liberal attacks on Bill Pryor offended swing-voter Catholics, the ones that determine election outcomes. Filibusters of Priscilla Owen and Janice Rogers Brown seemed extreme to women and moderates, and generated eleventh-hour fundraising. If Republicans force debate on the four blocked nominees now, Democrats will either concede and allow confirmation, or filibuster, and renew their image as out-of-the-mainstream obstructionists in the pocket of liberal special interests.
The absence of current confirmation debates allows attention to slip from the main attraction, the very real possibility of a third Supreme Court vacancy in the next two years. If voters want a Supreme Court that will eventually repair recent decisions on property rights, the Pledge of Allegiance, and marriage — as polls indicate they do — they should keep the Senate strongly Republican. Otherwise, another Justice O’Connor or Kennedy may be the best the White House will be able to do next time around.
With tough Republican races for Rick Santorum (Pa.), Mike DeWine (Ohio), Conrad Burns (Mont.), Jim Talent (Mo.), Jon Kyl (Ariz.), Michael Steele (Md.), and Tom Kean (N.J.) in the balance, why is Senate Republican leadership giving Democrats the gift of not putting judicial confirmations up for debate before Election Day?
– Sean Rushton is executive director of the Committee for Justice.