When asked about the confirmation of President Bill Clinton’s judicial nominees in 1998, Senate Majority Leader Trent Lott mused, “Do I have any apologies? Only one: I probably moved too many already.” Today, Senator Lott stands poised to join with Senator Zell Miller – in a faux show of bipartisanship – to rewrite the Senate rules, cut off debate, and in the words of Majority Leader Bill Frist, “just ram them right through the United States Senate.” With a conservative President in the White House, the tables have turned. That was then, and this is now.
The judicial confirmation showdown between the White House and the Senate is at a fever pitch and the public is often seduced into believing that statistics and rhetoric are at the heart of the issue. It is true that despite White House complaints, the Senate has confirmed more Bush judges in 34 months than the Senate confirmed in the first three years of the Reagan presidency. And, it’s tempting to simply express shock and awe at the Republican’s neck-snapping rhetorical reversals, but that parlor game misses the point. Public attention should be focused on the men and women President Bush has nominated to the courts and the implications for America if they are confirmed.
On the heels of last week’s Judiciary Committee hearing for D.c= Circuit nominee Janice Rogers Brown, the Senate Judiciary Committee stands poised to act on Fourth Circuit nominee Claude Allen while the full Senate considers Fifth Circuit nominee Charles Pickering’s controversial record. Each deserves careful scrutiny. It isn’t that they are conservatives; it’s that their records indicate a willingness to bypass the law to achieve an ideologically driven result.
That President Bush nominates conservatives to the bench is no surprise. But, Brown, Claude Allen, and Charles Pickering have spent their careers on the radical edge of the right wing. Brown is an outspoken supporter of a return to a pre-New Deal – that’s Franklin Roosevelt – perspective of the law. For those who don’t want to dwell in the first third of the last century, that should be frightening. She argues that America has become a “nation of whiners” and that policymakers are “handing out new rights like lollipops in the dentist’s office.”
Likewise, The Richmond Times-Dispatch wrote that Claude Allen “has been on the conservative side of ideological battles on some of the most emotional political issues of the day – abortion and child care, abstinence and sexual education, health care and welfare, Medicaid and the mentally disabled, cloning, stem-cell research and the right to die.” In fact, Allen has spent little of his career practicing law – five years less than the American Bar Association recommends for judicial nominees – and most of it advocating for conservative policies.
There is plenty in Pickering’s background to make the average person nervous: a law school article proposing changes to – not the elimination of – Mississippi’s ban on interracial marriage; his 1973 Mississippi State Senate vote for a resolution to call a constitutional convention to consider an amendment banning race-based school desegregation orders; and a vote for a constitutional convention to overturn Roe v. Wade. But, it wasn’t just Pickering’s past that led the Senate Judiciary Committee to reject his nomination in March 2002 and all but two Democrats to oppose an effort to end debate on his nomination on Thursday. It was his willingness to abandon the law to reach a conclusion consistent with his views.
Each nominee’s record displays a willingness to relentlessly pursue a personally satisfying result whether or not the result is supported by the law. Brown’s disdain for the “lollipops” some call civil and constitutional rights has resulted in opinions that leave even her conservative colleagues baffled. So extreme are her views and so unconvincing were her answers at last week’s Judiciary Committee hearing, Stephen Barnett – a former Brown supporter and law professor emeritus – reversed his position on her nomination. In his words, “to hear the views in these speeches expressed by a potential member of either the D.C. Circuit or the Supreme Court is just too scary.”
Some might argue that Claude Allen is a perfect choice for the Fourth Circuit. Considered one of the most conservative appellate courts in the country, pessimists might argue that the Fourth Circuit is too far gone to salvage – until 1999, the annual Fourth Circuit judicial conference sing-a-long included “Dixie.” But, the ultimate question is not whether Mr. Allen is conservative – that is not disqualifying. The Senate must know whether Mr. Allen can bypass his personal views and interpret the law fairly. His record as Virginia’s Secretary of Health and Human Resources indicates otherwise. An outspoken opponent of Virginia’s Health Care Decision’s Act, he tried to thwart Hugh Finn’s request to suspend life support. Allen’s efforts were eventually spurned by Virginia courts but led Finn’s widow, Michele Finn, to write that Allen is incapable of “set[ting] aside [his] own personal and moral convictions to uphold the law and protect the rights of citizens before the court.”
Mississippi district court judge Pickering’s handling of a 1994 cross burning case raises the same concern. Those who support Pickering would have us believe that Senate Democrats have grossly misstated the facts. They argue that after two defendants agreed to a plea bargain, Pickering saw that the third defendant – Daniel Swan – went to trial. They also argue that the reason Pickering imposed a 27-month sentence – instead of the seven and a half year sentence requested by the Justice Department – was that Swan was not the ringleader.
What Pickering supporters conveniently forget is that Daniel Swan – who obtained the wood, built the cross, carried the cross in his truck, doused it with gasoline, and watched it burn – was convicted of every count. They also forget that the two defendants who agreed to a plea bargain were a minor and a young adult with diminished mental capacity. They also fail to remember that Pickering was bound to adhere to the sentencing guidelines and unlike other cases in which there were lawful means to reduce a sentence, there were no alternatives in this case. To achieve his goal, Pickering conducted ex parte conversations with a friend in the Justice Department and made other demands. He had to get the Department to drop one of the charges supporting the conviction to support his more lenient sentence. For all of those reasons – though a few, African-American Mississippians support Pickering – every African-American organization in Mississippi opposes his nomination.
Brown, Allen and Pickering will take their brand of outcome-driven justice to the D.C., Fourth, and Fifth Circuits if they are confirmed. Along with other Bush nominees, they have the capacity to reshape the law and the lives of millions of Americans. While President George W. Bush can forward these names to the Senate, he should not expect the complicity of the public and their representatives in the Senate who do not share his vision for the courts.
Melody Barnes is a Senior Fellow at the Center for American Progress.