The Nuclear option

For weeks now, political junkies watched in fascinated horror as the Senate moved ever closer to the "nuclear option" - a plan created by some Senate Republicans, most notably Majority Leader Bill Frist, to eliminate filibusters for judicial nominees. Like a flan in a cupboard, however, the Dems caved and confirmed Priscilla Owen for the 5th U.S. Circuit Court of Appeals. I find it ironic that, although Democrats have confirmed more of Bush's judicial nominees than Republicans did President Clinton's, the Dems are being called "obstructionists." What's the big deal with these ten judges whose nominations are blocked? Why are they so important to Senate Republicans?

Republican rhetoric concerning the judicial branch is confusing at best. Republicans have repeatedly warned the American public against "activist judges" whose personal politics are a threat to the American people. Keep in mind that the complaint against "activist judges" was first hurled at those Supreme Court justices who voted to desegregate schools via Brown v. Board of Education. The fact that "activist judges" are deplored only when their decisions favor the rights of minority populations and women is telling. The ten (now nine) judges that Senate Republicans are chomping at the bit to confirm are just as politically involved as the Warren Court's justices. However, their personal brand of politics (conservative to fascist) keeps them from being labeled "activists." I began to wonder what was so important about these ten disputed judges that would make Republicans consider Frist's "nuclear option."

To my not-so-great surprise, it was the big three: abortion, homosexuals, and people of color. Here are a few of the more salient examples:

Priscilla Owen, who was confirmed May 25th, is so infamous for her activist decisions that she was castigated by no other than Bush's own counsel Alberto Gonzales. Owen is particularly famous for her attempts to restrict women's access to abortion. Owen wants to restrict judicial bypass, a procedure where a judge can grant permission for a minor to obtain an abortion without parental consent. Keep in mind that judicial bypass is required by federal law (see the Supreme Court decision on Hodgson v. Minnesota). Owen wants to require minors to undergo counseling sessions that detail religious objections to abortion - regardless of the minor's own religious beliefs - before they can even apply for a judicial bypass. No wonder Gonzales called her decision "an unconscionable act of judicial activism."

Nominee Janice Rogers Brown, of the California Supreme Court, ignored judicial precedent in her opinion on Aguilar v. Avis Rent A Car Systems, Inc. Brown upheld the "rights" of workers to use racial slurs directed at minority employees while on the job, even whenuch an act constitutes illegal racial discrimination. Her minority opinion in People v. Mar upheld the Constitutionality of making defendants wear stun guns strapped to their bodies while giving testimony; moreover, it upheld the conducting of warrantless searches of houses by local police in direct contradiction with the Fourth Amendment.

A third nominee, Terence Boyle, has been nominated to take a seat on the 4th Circuit U.S. Court of Appeals (which hears cases for North Carolina and other adjacent states). Boyle was recommended by none other than former Senator Jesse Helms. It's interesting that the very court to which Boyle has been nominated has reversed over 150 of his decisions - the worst reversal rate of any of Bush's nominees. Among Boyle's most famous decision is his opinion in United States v. North Carolina. Here, he ruled that the state could lawfully discriminate against women because such discrimination is part of North Carolina's "culture." In Ellis v. State of North Carolina, Boyle decreed that the doctrine of states' rights prevents African Americans from bringing claims of racial discrimination against the state. Both decisions were later overturned by the Court of Appeals to which he has been nominated.

Finally, William Pryor, who was recess appointed by Bush in 2004, has an astounding history of activist decisions. Pryor, the former Attorney General of Alabama, challenged the Constitutionality of women's right to redress against sexual assault and domestic violence (see United States v. Morrison). He also urged Congress to repeal parts of the Voting Rights Act that protects the franchise rights of African-Americans. Most famously, he filed an amicus brief for Lawrence v. Texas that compared homosexual activity to "prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia."

In short, it appears that the "nuclear option" is not aimed at putting strict interpreters on the federal bench. Rather, it is a power play by Republicans to get their own version of activist judges - homophobic, anti-women, anti-civil rights judges - ensconced in lifetime appointments. It is one thing to play politics, but to mask obvious power ploys in a cloak of Constitutional respectability is a foul breech of both the law and civil decency. I can only hope that a coalition of Democrats and moderate Republicans can band together to stop this insanity.