Battle Over Judges

This potentially historic confrontation between the dominant Republicans and minority Democrats, which could occur as early as mid-April, is shaping up to be the marquee ideological war of 2005. Conservatives, firmly in control at the White House and on Capitol Hill, are now targeting the federal courts, which they view as the last repository of liberal power, a haven for "activist judges" with lifetime tenure. They're thirsting for an overhaul.

And Senate Republicans, goaded by the conservative interest groups, are now poised to take extraordinary steps to confirm seven stymied Bush judicial nominees - by clearing all Democratic roadblocks, thereby making it easier for Bush to ultimately install a strong conservative on the U.S. Supreme Court and move it decisively rightward.

Some crucial maneuvers, such as the GOP's vow to change Senate rules and erase the Democrats' ability to block Bush by conducting endless debate, may seem like abstract stuff. But consider the stakes: Federal courts, in recent decades, have become the arbiters on abortion, affirmative action, gay rights, pornography, prayer, church-state relations - all the cutting-edge issues that pit liberals against conservatives and prompt impassioned debate over what kind of nation we want to be.

The last weapon for the outnumbered Senate Democrats is to filibuster those seven Bush appellate-court nominees, using the parliamentary tradition of endless debate as they did during Bush's first term. The GOP is threatening to change Senate rules and essentially remove that weapon. The Democrats say that if the GOP takes such action, they will retaliate by halting most of the Senate's business - and triggering a partial government shutdown.

Could it happen? Absolutely, said Senate expert Ross Baker of Rutgers University: "Both party bases, and the interest groups on both sides, are really armed for bear, and senators would cringe at incurring their displeasure [by backing down]. On the issue of judges, these groups are polarization machines."

The Schiavo case has further inflamed conservatives' long-standing antipathy toward the judiciary. The charge is that federal judges have defied Congress and sentenced her to death. Some religious conservative leaders, in fact, believe that "Remember Terri!" will become the movement's rallying cry.

Gary Bauer, a conservative and former Republican presidential candidate, said, "If or when Terri passes away, she will become a symbol of conservative anger and disdain for what we see as out-of-control federal courts... making decisions way beyond what they are authorized to do."

But what about the fact that more than half the federal judges who declined to reattach Schiavo's feeding tube were Republican appointees - including the swing voter on the appeals court? Bauer replied: "Republican presidents have not been adept at making sure that their appointees were ideologically on our side. Conservatives have been arguing for a long time that presidents ought to have a stronger litmus test."

It remains to be seen whether Senate Republicans will embrace the Schiavo case in their bid to confirm Bush's nominees, given the strong public backlash against the congressional intervention in the case; even the pollsters at Fox News report that sentiment. And Elliott Mincberg, general counsel at the liberal People for the American Way, suggested that "the public's reaction could force the Republicans to think twice" before they seek to erase the Democrats' right to filibuster.

Perhaps. But, for now, the Schiavo case is fueling fresh conservative attacks on judges. Pundit Ann Coulter says it's wrong for Americans "to treat the pronouncements of former ambulance chasers as the word of God," a reference to the common stereotype about lawyers. And Sen. Rick Santorum (R., Pa.) says he is shocked that U.S. District Court Judge James Whittemore speedily affirmed the removal of Schiavo's feeding tube, because "that's not what Congress told him to do."

Many legal observers are deeply troubled by these kinds of attacks. They fear, amidst the growing politicization over judges, that public respect for the courts is at risk - that fewer Americans will heed Alexander Hamilton's 1788 belief that "the firmness and independence" of the judiciary is necessary to counter mass emotion and "the pestilent breath of faction."

Steven Smith, a public policy expert at Washington University in St. Louis, said, "If court rulings are increasingly seen as illegitimate, and if politicians start feeling compelled to bad-mouth the courts, will people feel obliged to disobey them? Then the system would really be in trouble."

Yet this is hardly the first time that politics has intruded on the judiciary. John Adams and Thomas Jefferson fought over the political allegiances of judicial appointees 204 years ago. Most famously, Franklin D. Roosevelt, fresh from a landslide reelection victory in 1937, sought to craft a more liberal Supreme Court by expanding the number of judges. Even his Democratic Senate allies said no, calling it an "utterly dangerous abandonment of constitutional principle."

Today, some legal analysts believe that the Senate Republicans are poised to overreach, just as FDR did - in this case, by denying Democrats a traditional Senate parliamentary weapon, the right to filibuster. It would require a ruling from the presiding officer, Vice President Cheney. It was Sen. Trent Lott (R., Miss.) who in 2003 nicknamed this prospective move "the nuclear option."

And the GOP, notably Senate leader Bill Frist (who has White House aspirations, and thus needs to please conservatives), is under pressure to nuke. Todd Gaziano, who runs the legal-issues shop at the conservative Heritage Foundation, said: "Frist has ambitions. So this is a test and he understands that. Republicans have committed [to the nuclear option], and it would be a great sign of their failure of leadership if they don't get the job done."

The current standoff is so impassioned that both sides are trimming the facts. Senate Republicans are painting the filibuster as an evil tool that is thwarting Bush, yet in 2000, they sought to filibuster several Bill Clinton court nominees. As Sen. Bob Smith (R., N.H.) said on the floor, "That is our constitutional role." One of his supporters was Frist.

Similarly, while Democrats are decrying the GOP's nuclear-option threat - Sen. Robert Byrd of West Virginia recently compared it to the tactics of Hitler - it was Byrd who repeatedly sought, during the late '70s, to make it easier to cut off filibusters. Democratic President Woodrow Wilson, in 1917, successfully goaded his Senate allies to do just that, in order to thwart what he called "a little group of willful men."

The Democrats triggered the ideological war over judges by opposing Ronald Reagan's 1987 Supreme Court nominee, Robert Bork, because of his conservative beliefs. Both sides have been engaged in payback ever since, as they assess nominees not on the basis of their intelligence or temperament (the old criteria), but on whether they are likely to advance a liberal or conservative agenda.

A recent Democratic fund-raising letter frankly stated a preference for judges who will uphold "civil rights, women's rights, labor rights, our right to a clean environment, and our right to basic civil liberties." That's a synonym for what conservatives call "judicial activism." But liberals have thrown the same term at stymied Bush nominee William Myers, who, as a past lobbyist for the mining industry, was openly hostile to environmentalists.

Given all these passions, is it possible that a nuclear Senate showdown over judges can be avoided? Mincberg, of People for the American Way, was pessimistic: "This is the number-one issue for the far right, and their attitude is, 'It's our way or the highway.' "

Todd Gaziano was pessimistic, too - but he blamed the liberals: "The groups calling for the Democrats [to filibuster] are crazy. The Democrats are locked in by their crazy base."

In the end, somebody has to lose this war over judges, but Senate expert Baker said, "Winning or losing doesn't matter. This is just about fighting the fight. No matter the outcome, you claim victory based on the intensity of your involvement. It's a sign of the times."