Forty Years of Extremists

By Robert S. Rivkin, Pacific News Service. Posted May 18, 2005.

You've got to hand it to the Senate Republican leaders. Launching debate on May 17, Majority Leader Bill Frist offered the most succinct argument for ramrodding President Bush's most extreme judicial nominees through the Senate confirmation process. With dazzling simplicity, he opened the debate with the statement that, as a matter of simple fairness, all 10 of Bush's nominees are entitled to "an up or down vote" because a majority of senators supports their confirmation.

The Republicans have identified a theme -- or as linguistics professor and commentator George Lakoff would put it, a "frame" -- that the average American can understand. "Up or Down Vote" -- what's complicated about that?

The Democrats have tried to expose the hypocrisy of this propaganda by pointing out that the Republicans, in effect, "filibustered" over 60 of President Clinton's judicial nominees by killing their nominations in committee -- and preventing a vote on the Senate floor. Moreover, Frist was required to admit that even he voted in favor of the filibuster on at least one occasion.

In TV ads placed by radical right groups that are closely connected to the Republican Party, another deceptive theme has been pushed: that Bush's most controversial judicial nominations are designed to stop "judicial activism" by "arrogant" courts. Would Republicans admit that the 1896 decision in which the Supreme Court interpreted the equal protection clause of the 14th Amendment to permit racial segregation, was an act of judicial activism? Would Republicans admit that another 19th century Supreme Court decision that allowed corporations to be cloaked with the constitutional rights of a "person," was an act of judicial activism?

Despite Justice Antonin Scalia's philosophy to the contrary, judges are not mechanics. No jurist challenged to interpret a basic text in a case that has engendered political controversy can decide a case based only on the text. There is always room for interpretation of words. That is why the identity of the judge who interprets the law is important. All we can hope for is a judge who is honest and open-minded -- not one who is known to twist words or to have a radical agenda like undoing the New Deal.

The radical right went ballistic when truly conservative federal judges refused to be "activist" -- by turning back the shabby attempt by a Republican-dominated Congress to reverse a Florida judge's decision favoring Terri Schiavo's husband in that tragic case. What is clear is that Bush doesn't want to curtail judicial activism -- he wants to stack the judicial deck for the next 40 years by appointing activists of the far right.

Once the religious right's theocratic agenda has been fulfilled, it will not be reversible or derailed during the lifetime of Bush's judges. Even if the religious right's current agenda were to be overwhelmingly rejected by the voters for the next 30 or 40 years, it would be locked in -- by "activist judges" of the radical right.

If some are still confused over the meaning of this filibuster battle, it is because the Democrats have so far failed to explain the long-term stakes.

The "nuclear option" is designed to help Bush stack the judicial deck with extremists for the next 40 years.

That, more than anything else, is what the Democrats should be shouting from the Senate's rafters. It is a theme which easy for the public to understand. And it is true.

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