Special Report: Right-Wing Demagoguery on Judges
Radioactive Rhetoric to Promote the Right’s “Ideal” Judges
For months, Senate Majority Leader Bill Frist has been threatening to deploy the “nuclear option,” a parliamentary maneuver designed to unilaterally break the rules and prevent senators from using filibusters against extremist judicial nominees. But with polls showing that Americans are opposed to such a move by as much as a 2 to 1 margin, the Republicans and their right wing allies are making false claims of racial and gender discrimination to divert attention from their radical agenda.
In late April, the Republican controlled Senate Judiciary Committee, on a straight party-line vote, sent the re-nominations of Priscilla Owen and Janice Rogers Brown to the Senate floor for confirmation, knowing that Democrats intend to filibuster these nominees again, just as they have done since 2003. Democrats have opposed them, and a handful of other nominees, because of their radical views on important constitutional and other legal issues – not because of their race or gender.
Republican senators signaled that the expected filibusters of Owen and Brown would be used by Republican leaders as the excuse to trigger the nuclear option. After Owen and Brown were voted out of committee, Senator Kay Bailey Hutchison declared that “we have now the vehicle” to force a showdown in the US Senate.
Steven Calabresi, one of the co-founders of the Federalist Society, suggested in a recent Weekly Standard article that Republicans could consider Owen and Brown good candidates for forcing a judicial showdown because, by highlighting Democratic opposition to female or minority nominees, it will potentially “drive a wedge between the left-wing leadership of those groups and the members they falsely claim to represent.”
(Cynically) Playing the Race and Gender Cards
Since Owen and Brown were first nominated, those on the far right have worked to exploit their race and/or gender to promote their confirmation and simultaneously smear those who oppose them. Opposition to Owen, the argument goes, is coming from pro-choice groups who will target any woman who exercises, in the words of one right-wing commentator, her “‘right to choose’ not to fall in line with the political agenda of certain liberal women's groups.”
The Independent Women’s Forum claimed that Owen’s judicial philosophy is “endorsed by the mainstream of American women” and complained that “radical feminists” have created a “glass ceiling” in order to “prevent qualified female nominees from taking their seats on the federal bench.”
As far back as 2003, Sen. Orrin Hatch was saying “women across this country ought to be outraged …” because opposition to these nominees is “a slap in the face to every one of them.”
The Right is making a similarly specious racial argument about opposition to Janice Rogers Brown, accusing Democrats of seeking to destroy “any black person who escapes the liberal plantation.”
A 2003 editorial in the Wall Street Journal promoted this view by accusing Democrats of opposing Brown for being “too qualified – and black.” The piece went on to assert that “liberals reserve their harshest and most personal attacks for minorities with the audacity to wander off the ideological plantation” and claimed that the Democrats’ goal “is to make her look somehow like an inauthentic black.”
Groups like the Committee for Justice (CFJ) have also attempted to portray Brown as a victim of alleged Democratic racism. In an article in The National Review, CFJ’s executive director Sean Rushton claimed that Democrats see Brown as a “race-traitor, Uncle Tom sellout” because she is a “conservative black woman.”
Joseph Farah, founder and editor of the ultra-conservative WorldNetDaily, unleashed a torrent of invective against “the racist Democrats” for their opposition to Brown. Farah pulled no punches, claiming “many of the leading Democratic politicians in America are racist to the core” who believe that “minorities really aren't capable of achieving on their own.”
Farah went on to highlight a comment made by Senator Kennedy about nominees to the bench in which Kennedy used the word “Neanderthal.” Farah wondered if “‘Neanderthal’ [could] be the new ‘N’ word” Democrats use to describe any minority who leaves the ‘progressive plantation.’” [sic]
At one point, the Family Research Council’s Tony Perkins claimed that Brown “ceases to be black” in the eyes of Senate Democrats “because she is conservative” while later claiming that they “are afraid of the diversity Justice Brown represents.” Perkins’ point isn’t entirely clear, but it is contradictory. If Brown “ceases to be black” in the eyes of Democrats, then her race cannot be the reason she is being opposed -- and that leaves only her radical judicial philosophy, which Perkins and his friends are trying to distract attention from.
Furthermore, it is disgraceful that Perkins would not-so-subtly accuse Democrats of racism in this manner – especially considering his own ties to racist organizations and candidates. In 1996, Perkins was the campaign manager for a right-wing Republican candidate for the US Senate in Louisiana. To assist in that campaign, Perkins paid former Ku Klux Klan Grand Wizard David Duke $82,000 for his mailing list. The Federal Election Commission eventually fined the campaign for attempting to hide the money it had paid to Duke. And just four years ago, Perkins addressed the Louisiana chapter of the Council of Conservative Citizens (CCC), which traces its roots to the racist White Citizens Councils which fought against integration in the South in the 1950’s and 60’s.
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Right-wing pundit and Crossfire host Robert Novak couldn’t resist getting into the fray, accusing People For the American Way of “racism” because a PFAW ad critical of the judicial records of Owen and Brown featured the voice of a southern woman talking while Brown’s face was on the screen (the same voice was on throughout the ad.) Novak’s outburst led People For the American Way President Ralph G. Neas to quip that “even by the rapidly deteriorating standards of Bob Novak, that was a pathetic and irresponsible attempt to make race the issue where it simply isn’t.”
Setting the Record Straight
Progress for America, a group connected to the infamous “Swift Boat Veterans for Truth,” offers an endorsement on their website of both Brown and Owen. It claims that Brown has a good record regarding harassment and civil rights laws because as “someone who has been on the receiving end of that kind of conduct, Brown absolutely believes nobody should be subjected to verbal slurs.”
But this ignores criticisms from groups likes the California Association of Black Lawyers that Brown’s written opinions reveal that she harbors significant skepticism about the existence, much less the impact, of discrimination and has actually sought to limit the avenues available to victims of discrimination to obtain justice.
According to the National Women’s Law Center, Brown has taken positions that would undermine legal protections against harassment, including sexual harassment in the workplace. She has also questioned whether black women are really the victims of group discrimination when considering the long standing legal rule that prosecutors cannot discriminate against black women when choosing juries.
Janice Rogers Brown has a record of ideological extremism and aggressive judicial activism that puts her even further to the right than the likes of Antonin Scalia and Clarence Thomas. When then-appellate judge Brown was nominated to the California state supreme court in 1996, she was found “unqualified” by the state bar evaluation committee. Their concerns included her being “prone to inserting conservative personal views into her appellate opinions” and “insensitive to established precedent.”
Bush re-nominated Owen despite the fact that his current Attorney General, Alberto Gonzales, criticized her opinions when the two served together on the Texas Supreme Court, including one case where he accused Owen and other dissenters of “an unconscionable act of judicial activism” - a statement from which he is now trying to unsuccessfully backpedal. The fact that he leveled similar criticism against her more than ten times shows that this is not an isolated case limited to a single reproductive rights case.
Owen has also been criticized for joining a dissenting opinion that would have effectively rewritten part of a key Texas civil rights law and made it much more difficult for employees to prove discrimination based on sex, race, color, national origin, religion, age, or disability.
The conservative Judicial Confirmation Network has said that Brown and Owen “are about as close as you can get to an ideal judge” [italics added]. Yet even newspapers in their own home states have opposed the confirmation of these two nominees.1
Now that the Senate Republican leadership is hoping to use the nomination of Owen and Brown as the vehicle for eliminating the filibuster for judicial nominations by unilaterally breaking Senate rules, the right wing has taken on the role of party flacks, echoing Republican Senators’ claims that Democratic opposition is rooted in racism and sexism.
Eva Paterson, president of the Equal Justice Society, refuted such allegations about Democrats opposed to Brown and admitted that, as a black woman, she doesn’t like having to “oppose another sister” but explained that “It is not racist to oppose her." Brown’s nomination is also opposed by many leaders in the struggle for the civil rights of African Americans, such as the Congressional Black Caucus and the NAACP.
Speaking of Owen and Brown, the National Women’s Law Center has written, “The records of Owen and Brown show that these judges would pose serious threats to women’s rights and civil rights if given lifetime appointments to powerful federal appellate courts. The rights at stake include the constitutional rights to privacy and equal protection of the law, and the strength and vitality of federal laws barring sex discrimination in employment, education, and other areas. Opposing these nominees is not “anti-woman” – but filling our federal courts with judges who will roll back women’s hard-won gains is.”
Even conservatives such as writer Ramesh Ponnuru don’t think Brown belongs on the federal bench and chastised other conservatives for their willingness to make “lame arguments to rescue even nominees whose jurisprudence is questionable.”
In short, there are many substantive reasons to oppose both Priscilla Owen and Janice Rogers Brown having nothing whatsoever to do with their race and/or gender. Cynical claims to the contrary are attempts at muddying the waters and diverting attention from their records of extremism and evidence of their being out of the mainstream.
Hiding Their Extremism
Two hundred years of Senate tradition of protecting the rights of the minority – even when those rights have been unpopular - now hang in the balance and it is clear that the Republican Party and its right-wing allies are preparing for the deployment of the “nuclear option.” James Dobson has vociferously opposed any attempts at compromise, claiming that he was “disgusted and alarmed” by the prospect.
Even though the so-called “nuclear option” is unpopular with the American people, the right-wing is demanding that the Senate leadership pull the trigger and overturn longstanding Senate rules. Given the unpopularity of such a move, it is no surprise that they are trying to play the race and gender cards in hopes of distracting the public.
But try as they might, they are no more able to conceal Owen’s and Brown’s records of extremism than they are to distract the public from the extreme nature of their “nuclear” power grab and the harm Priscilla Owen and Janice Rogers Brown would cause to the rights of women, minorities, and all Americans.
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