Payback in Judges
" The worst-kept secret in Washington: Judicial appointments
are the tribute Bush pays to his political base."
By E. J. Dionne Jr.
Friday, January 10, 2003; Page
A21
washingtonpost.com
You have to hand it to
President Bush and his
judge-pickers.
They understand the
power of the judiciary to
shape American political
life for years to come. They
brazenly use their
executive authority to fill
the courts with their allies.
Then they attack, attack
and attack again when
opposition senators dare
invoke their own
constitutional power to
slow a juggernaut whose
purpose is to remake the
world according to the
specifications of Justice Antonin Scalia.
To make clear who is in charge, Bush took two circuit court
nominees rejected by the Senate Judiciary Committee last
year, when it was in Democratic hands, and sent them
right back.
The renominations of Justice Priscilla Owen of the Texas
Supreme Court and, especially, of Judge Charles W.
Pickering Sr. of Mississippi caused consternation and even
a bit of shock. Pickering had been the personal choice of
former Senate Republican leader Trent Lott, who was
pushed out of his job after his tribute to Strom
Thurmond's 1948 segregationist presidential candidacy.
Pickering was hurt by his handling of the sentencing in a
cross-burning case and his past views on civil rights.
Republicans argue that the cross-burning issue was
invoked unfairly, because Pickering was simply seeking
equity in the sentencing of the case's three defendants.
But Pickering's tendency to use court opinions for
disquisitions on public issues suggested a less than
judicial temperament.
Politically, the renominations were shrewd. By sending
Pickering up again, Bush signaled to his Southern backers
that he was willing to stand up for a Mississippian against
Senate liberals, despite Lott's defenestration. And the
energy the Pickering and Owen battles will soak up may
allow other ideological nominees to slip through.
The real issue here involves not the personal
characteristics of nominees -- there are plenty of smart
conservatives on Bush's list -- but a political struggle to
create an increasingly activist conservative bench. "They
realized that if they took over the one unelected part of the
government, they could govern for a generation," says Sen.
Charles E. Schumer, a New York Democrat.
A liberal fantasy? On the contrary, the ever-candid Clint
Bolick, a former Reagan Justice Department official and
conservative activist, told The Post this week that "everyone
on the right agreed in 2000 that judicial nominations were
the single most important reason to be for Bush." The
worst-kept secret in Washington: Judicial appointments
are the tribute Bush pays to his political base.
Moreover, conservatives are increasingly willing to use
federal judicial power to achieve political ends. Forget
Florida 2000 and consider a redistricting controversy in
Mississippi last year. It involved none other than Rep.
Charles W. Pickering Jr., a Republican who is Judge
Pickering's son.
Mississippi lost a congressional seat after the 2000
Census, and Pickering's district was merged with that of
Rep. Ronnie Shows, a Democrat. A state judge drew
district lines favoring Shows. A federal three-judge panel,
all Republican appointees, then drew a plan favoring
Pickering. The judges said they would impose their plan if
the Bush Justice Department did not quickly clear the
state plan for civil rights purposes. By dragging its feet, the
Justice Department sealed Shows's fate. The final blow
came from none other than Justice Scalia -- a friend of the
Pickering family who presided over the younger Pickering's
first swearing-in as a congressman. Scalia ruled to allow
the Republican judges to impose their map. Pickering beat
Shows this fall.
Or consider the ruling of Judge John D. Bates in
December declaring that Congress's General Accounting
Office -- and thus the public -- had no right to learn the
specifics about meetings between Vice President Cheney's
famous energy task force and various energy executives
and lobbyists. The same John Bates, an appointee of the
current president, was an attorney for Ken Starr's
Whitewater investigation and pushed hard (and
successfully) for the release of various White House
documents related to Hillary Rodham Clinton's activities.
"When that guy was working for Ken Starr, he wanted to go
open the dresser drawers of the White House," said Sen.
Patrick Leahy of Vermont, the ranking Democrat on the
Judiciary Committee. "I guess it's a lot different when it's a
Republican vice president." Such suspicions of
partisanship in the judiciary are corrosive because,
unfortunately, they are now plausible.
Judicial appointments are not like patronage jobs in the
Commerce Department. Judges sit for life. A president who
says he wants a more decorous process won't get it if he
refuses to acknowledge that the road to depoliticizing the
judiciary will be paved by consultation on appointments.
Playing partisan politics and calling it high principle won't
work anymore.
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