WHY THE RIGHT'LL SIT TIGHT

ADVICE AND DISSENT: The fight over the President's judicial nominations. (JEFFREY TOOBIN, 2003-05-19, The New Yorker)

Even more than Ronald Reagan, George W. Bush campaigned for the Presidency promising an ideological transformation of the federal judiciary, which includes six hundred and sixty-five district judges, a hundred and seventy-nine appellate judges, and nine Supreme Court Justices, all with lifetime appointments. Bush has cited Antonin Scalia and Clarence Thomas as the Supreme Court Justices he most admired. Last year, he told an audience, "We've got to get good, conservative judges appointed to the bench and approved by the United States Senate." That statement has been born out by his nominations, especially to the circuit courts of appeals. So far, Bush has nominated two hundred federal judges; more than half of them have been confirmed, as will most of the rest. But the Democrats, even with their diminished status in the Senate, have managed to stop several of the President's most controversial nominations. That struggle presages the even more significant battles that will take place if, as expected, one or more Supreme Court Justices retire in the next year or so. In part, the Democrats' effort has been fuelled by the personal dynamics of the Senate, where an aggrieved minority can accomplish, or at least thwart, a great deal of legislative activity. But the confirmation disputes trace their roots to the Constitution itself, and to the shifting meanings of the senators' obligation to advise and consent to the President's choices of judges. Also, to be sure, the fight over the Bush judges reflects the legal battle-two generations old and counting-over abortion.

Nominations for lower courts stir little public interest, despite their manifest importance. Mark Mellman, a Democratic pollster, says, "We have never seen an issue that people are less concerned about than nominations to the federal bench." But, he adds, "the core activists on both sides do care very deeply." So do the senators. Dianne Feinstein told me, "In the Senate, what goes around comes around. During the Clinton years, especially after 1994, when the Gingrich crowd took over in the House, our Judiciary Committee really changed, too, especially at the freshman end. Many of Clinton's nominees went years without getting their hearings. That left a very bad taste in our mouths." In 1999, Hatch, as chairman of the Judiciary Committee, refused to hold any hearings for six months, in a bid to get an ally nominated to a judgeship in Utah. (He got his judge.) Clinton nominated people for two vacancies on the District of Columbia Circuit, including the one Estrada sought to fill, but Republicans never allowed the nominations to be brought up for a vote. And, even though Clinton generally picked moderate nominees, after 1995 Republicans in the Senate blocked about a third of them.

Owing to the lack of public interest, a sort of secret society of confirmation junkies carefully follows developments. The opposing groups have almost identical names, which challenge outsiders to break the code. In the universe of the Alliance for Justice (liberal), the Committee for Justice (conservative), and the Institute for Justice (libertarian), September 9, 2001, marked an important date in the Bush Presidency. That was the day Miguel Estrada was nominated to serve as a judge on the United States Court of Appeals for the D.C. Circuit, which is generally regarded as the second most important court in the nation, after the Supreme Court. At the age of thirty-nine, Estrada had impeccable legal credentials and an inspiring personal story. He had emigrated to New York from Honduras as a teen-ager, attended Columbia College and Harvard Law School, clerked at the Supreme Court (for Anthony Kennedy), and served as a federal prosecutor and assistant solicitor general. Given the Bush Administration's long-standing efforts to appeal to Hispanic voters, Estrada looked like a prime candidate to become a Supreme Court Justice. (Three former D.C. Circuit judges-Scalia, Thomas, and Ruth Bader Ginsburg-serve on the Supreme Court.)

But, for all his accomplishments, Estrada had virtually no paper trail. "Unlike many nominees, he has never written anything, he has never given speeches, plus he was very vague in his answers to the committee," Feinstein told me. "He's a cipher." Estrada did, however, belong to the Federalist Society, an organization of conservative lawyers that has served as an essential networking tool on the right, and in the Washington legal community activists on the left and the right spread word that Estrada was a hard-core conservative in the tradition of Scalia and Thomas. So liberal groups, including several Latino organizations, mobilized against Estrada and began examining his past for ethical missteps that might be used to stop his confirmation. When Estrada was nominated to the D.C. Circuit, Democrats still controlled the Senate, and Patrick Leahy, then the chairman of the Judiciary Committee, showed no hurry to move the nomination along.

The search for dirt came up empty. But Senator Schumer was building the framework for a more potent attack on the nominee-and, indeed, on the Bush effort to reshape the judiciary. "When I came to the Senate, I knew I had the ability to help choose judges," Schumer told me recently over lunch in the Senate dining room. "And I chose three standards for myself-excellence, moderation, and diversity. I don't think the third branch of government should be all white males. Then Bush took over, and it became clear right from the start that he was changing the ways judges are nominated, by picking people who are almost all far to the right. On a scale of one to ten, with ten the most liberal, Clinton chose a lot of sixes and sevens-lots of partners in law firms and former prosecutors. Bush said during the campaign that he was going to pick judges in the mold of Scalia and Thomas, but I thought it was just campaign talk. Then it became clear that that was exactly what he meant."

This pretty much makes nonsense of the Economist piece below and the idea that Bush is selling out social conservatives.

(via Kevin Whited):
George Bush and the social conservatives: A troubled marriage (The Economist, May 15th 2003)

Gay marriage is not the only ?betrayal?. Mr Bush has been far more willing to spend his political capital on tax cuts than on faith-based initiatives (which have been allowed to wither on the vine). Many fundamentalists dislike his insistence that Islam is a peaceful religion. Some are even angry that John Ashcroft, their main man in the cabinet, has taken such a draconian line on civil liberties: they worry that a future attorney-general may be able to spy on conservative religious organisations.

Does all this noise matter? Some of the smartest observers of the political scene doubt it. Norm Ornstein, of the American Enterprise Institute, calls it a ?toothless bark?. Would social conservatives really be willing to hand the White House over to the pro-abortion, pro-gay Democrats? [...]

[T]here are still three good reasons to think that the barking from the right may not be entirely toothless. To begin with, social conservatives are not as pragmatic as the deal-doing business conservatives are. They are absolutists, who are willing to go to the stake for certain issues.

Second, social conservatives are now buried deeper inside the Republican establishment than ever before. In the 1990s conservative Christians tended to work through outside organisations such as the Christian Coalition. More recently they have worked from within, taking the battle to precinct meetings and the like. According to a study in Campaigns and Elections, a Washington magazine, Christian conservatives now exercise either ?strong? or ?moderate? influence in 44 Republican state committees, compared with 31 committees in 1994, the last time the survey was conducted. They are weak in only six states, all in the north-east. Ralph Reed, the Christian Coalition leader until 1997, now runs the Georgia Republican Party.

Anyone who doubts the clout of these Christian conservatives within the party should study the fate of last year's bankruptcy-reform legislation, which the business wing of the party wanted. Social conservatives destroyed the bill because it included a provision designed to crack down on anti-abortion protesters.

A third reason for Mr Bush to worry about social conservatives is that they do have an alternative to voting Republican: they can stay at home. Karl Rove points out that some 4m Christian conservatives who voted in 1994 failed to vote in 2000. The return of many of these voters to the fold in 2002 helped the Republicans pick up vital Senate seats in Georgia and Missouri. If they feel let down in 2004, it could hand a close election to the Democrats.

It will not get any easier. The White House's strategy for the next year is to focus on conservative causes that have overwhelming public support?such as opposition to cloning and late-term abortion. But it will also have to deal with several issues that could drive a wedge between conservative activists and swing voters.

The most important decision will involve the Supreme Court. At least one Supreme Court justice may retire in the next year or so. Conservatives see the selection of a new justice as an issue on which they are prepared to break with the president. ?We will not put up with another [David] Souter,? says Ms Schlafly, referring to a judge appointed by George Bush senior who has since voted in a liberal manner. On the other hand, moderate suburban women would be horrified by the idea of another conservative in the court, particularly an anti-abortion one.

To understand how someone got a story so wrong, you really need read no further than this line: "They [social conservatives] are absolutists, who are willing to go to the stake for certain issues." This is sort of the conservatives-as-Taliban theme that the Left likes to try and convince us of periodically. We'd merely not that, amidst innumerable stories about how conservatives distrust George H. W. Bush's son and his "compassionate conservatism", George W. Bush has upset a sitting VP in a time of peace and unprecedented prosperity and scored a midterm victory that defied over two centuries of American political history. The idea that conservatives will not go to the polls for him in a re-election bid--when even moderates and independents will give him a majority--is truly silly.

Meanwhile, this exact same Ashcroft story was floated last July in the Times and was pretty decisively shot down at that time.

MORE MORE: THE SHAKY BASE:
Conservative religious groups rejoice as Senate passes AIDS bill (Christianity Today: Weblog, 5/19/03)

Early Friday morning, the U.S. Senate passed the House's Global AIDS Bill, which triples the country's anti-AIDS expenditures to $15 billion. Included in the bill are conditions that one-third of AIDS prevention funds be used to promote sexual abstinence before marriage and that religious groups opposed to condoms would neither be forced to distribute them nor be denied funding.

Conservative profamily groups, which had lobbied hard for those two amendments, rejoiced at the news.

"We now know what works: abstinence and marital fidelity," Sandy Rios, president of Concerned Women for America, told the Associated Press. "The passage of this bill may prove to be one of the greatest events in the history of Africa."

Focus on the Family, which devoted its Friday broadcast to supporting the bill, issued a congratulatory press release within hours of its passage.

"The passage of this bill represents a landmark effort to end this deadly plague by ensuring that the only successful approach?abstinence?will be a priority," said Tom Minnery, Focus's vice president of public policy.

"AIDS sufferers in Africa will no longer continue to be offered only condoms?the same faulty approach that has increased sexually transmitted diseases in America. We look forward to seeing more successes like the ones we've seen in Uganda. . . . Just a couple of weeks ago the Senate was headed in the wrong direction, but thanks to the strong leadership of President Bush and Senate Majority Leader Bill Frist, the Senate changed course and passed a bill that will begin to address this global problem. We are grateful for their leadership on this bill and for their sincere efforts to relieve the suffering of so many afflicted by this horrible disease."

Likewise, the organization's Family News in Focus ran a story Friday on the bill's passage, asking supporters to contact the White House and Senate Majority Leader Frist with thanks for their hard work. Focus also asked supporters to "give thanks to God that the Congress has passed a bill for fighting AIDS that honors God's principles." Unlike most press releases and articles from profamily groups, the Family News in Focus article examines the bill beyond the abstinence measure (which, even with the conservatives' amendment, will receive less than 7 percent of the bill's total funds).

Meanwhile, liberal groups are steaming.

Posted by Orrin Judd at May 19, 2003 8:10 PM