Certainly, you recall the Trent Lott affair of a couple of months ago, wherein the former Republican Senate Leader was forced to step down following inflammatory racial comments? Well, undaunted by either these rejections or the racial undertones of the Trent Lott affair, last month, on the opening day of the new Congress, President Bush re-nominated the whole “lot” of his 31 judicial nominees who were rejected last year. Included in the list were Owen and Pickering.

Apparently, the party of Abraham Lincoln just doesn’t feel the same way about civil rights any more. Why else would Bush re-nominate a man with a troubling and controversial history of racial insensitivity? What kind of message does that send African-Americans during Black History Month?

Unfortunately, the Democrats will now have to work even harder to oppose these unsuitable, insensitive and extremist nominees. This, in turn, will no doubt lead to more Republican charges of obstruction.

At best, these criticisms are disingenuous; at worst, they are hypocritical and bring to mind a quote from John Kenneth Galbraith that “Nothing is so admirable in politics as a short memory.” I guess that the Republicans don’t recall their own conduct in the Judiciary Committee when they controlled the Senate during the Clinton Administration.

Or, perhaps the late New York Herald Tribune journalist Walter Lippman had it right when he suggested, “Brains, you know, are suspect in the Republican Party.” So, let me provide my Republican friends with some enlightenment.

For those who decry the “politics” of the judicial nomination process, the truth is, political considerations were very much intended by the founding fathers. The approval of federal judicial nominees for lifetime tenure is, by its very nature, a political process. Republicans complain that the debate over a judicial candidate’s ideology should not be a part of the Senate’s consideration process. If the President selects a well-qualified individual, they argue, it is the role of the Senate to confirm that nominee. Nonsense. The Constitution gives the Senate the role of advice and consent.

Alexander Hamilton laid it out clearly in the Federalist Paper 77 when he said that the Senate’s job is to restrain the President through its advice and consent responsibility. Where does the Constitution say that the President can consider ideology but the Senate cannot? Yet this very double standard is exactly what the Republicans are suggesting.

The President may employ a litmus test to select extremely conservative candidates, but the Senate is supposed to look no further than a nominee’s legal qualifications. That simply makes no sense. It would be an abdication of the Senate’s constitutional responsibilities.

The fact is, during the last Congress, the Senate Judiciary Committee did its job, examining the records and qualifications of the President’s nominees and overwhelmingly approving most of them. At the time that the Owen nomination was considered, 81 nominees had been confirmed in the last 15 months, most of them conservative Republicans.

Despite what Republicans may now believe, it is not the role of the Senate to rubber stamp the President’s nominees. Despite a small number of Republican Congressional gains in the last election, there is no mandate to skew the Courts to the right. Most people want neither an overly liberal judiciary, nor an overly conservative one. They want moderate, mainstream judges. The President does not seem to understand this.

The Republicans, with their selective memory lapse also forget that when they ran the Senate, they operated exactly the same way in which they now accuse the Democrats of acting. During the Clinton Administration, the Republican leadership left almost 60 judicial nominees languishing in Committee, without even the courtesy of a hearing. Others got their hearings, but never had a chance at confirmation, because the leadership would not call a vote on their nominations. In fact, President Clinton tried twice to fill the very same seat President Bush sought to fill with Priscilla Owen, but the Republican Senate refused to consider his nominees.

If the President establishes ideological litmus tests as a requirement for his judicial nominees, and if he selects nominees based upon that litmus test, why are Senate Democrats wrong to utilize similar litmus tests in evaluating those nominees?

If in fact, Republican conservatives opposed many Democratic nominees because of their “judicial activism” (translation: liberalism), how is that any different from conservative judicial activists like Patricia Owen who are so ideologically driven they are unable to set aside their personal beliefs to follow judicial precedent? Right wing judicial activism and the willingness to ignore the plain language and intent of laws to advance a personal political agenda is equally offensive. That is why Patricia Owen was properly rejected by the Senate.

While President Bush claims he wants to appoint judges who uphold law and precedent, Owen ignored clear statutory language and let her personal preferences dictate her rulings. She was properly rejected for it. I only hope we can make it 0-2, when she comes up for consideration again.

Perhaps if the Bush Administration were more focused on picking distinguished jurists and less interested in advancing a right-wing agenda with controversial or problematic people, the process would be less contentious. Maybe the President should take another look at the word “mainstream.”

February 3, 2003