As I write this, “Republic” senators are charging that Democrats harbor racial and ethnic bias and are antiwoman because they are blocking the nominations of several Bush choices for the federal appeals court who fall into these categories. Minorities and women are the core constituencies of the Democratic Party, and the GOP forfeited any claim it might have on gender sensitivity when George W. Bush signed the late-term abortion ban surrounded by 14 postmenopausal men. Whatever one’s position on legalizing abortion rights, the absence of even a single woman in the photo op was a huge blunder.
An audience picture that ran on the front page of The New York Times featured a smiling Jerry Falwell applauding Bush as he put pen to paper. Though the legislation will almost certainly be overturned when it reaches the Supreme Court, its passage scores points with Bush’s conservative base. And if Bush wins re-election, the betting could change on what the high court will do. It would only take the resignation of one or two aging justices for Bush to reconfigure the court on social issues like abortion.
Conservatives are angry about the wimpish leadership of Senate Majority Leader Bill Frist, an amiable fellow who shies away from confrontation. They think the Democrats have rolled Frist by mounting a 60-vote threshold for Bush’s most controversial nominees. Conservatives want to drop the bomb-legislative parlance for changing Senate rules to remove the right to filibuster over judges. That would violate years of tradition and obliterate what little goodwill remains between the parties.
Frist is relatively new to the Senate; he’s only in his second term, and he’s caught between tradition and a rapacious Republican right wing. This week’s 40-hour talkathon during the Senate’s debate on judicial nominations was a sop to the right, but it may backfire. To spend that many hours venting on the Democrats’ refusal to allow a vote for four judges after having confirmed 168 Bush appointees will spawn stories about how little this Congress has accomplished. Fox anchor Brit Hume once remarked that the national media cover Congress like it’s a bunch of guys throwing rubber chickens at each other.
The Republican theme is “justice for the judges,” while Democrats broadened the debate to “justice for the jobless,” using their half of the allotted time to bash Bush and call for a vote on increasing the minimum wage. Democrat Harry Reid of Nevada staged a prequel to the real event with a seven-hour soliloquy on the native fauna and flora of his state, including its rabbits and cacti. These are not debates designed for mass consumption. This is about each party playing to its base. The stream of oratory emanating from Capitol Hill is not going to play well among the middle, if there is a middle any more. In a 50-50 nation, everybody has chosen sides.
There is no shortage of hypocrisy on Capitol Hill, but the Republicans outdo themselves when they play hurt. The GOP stalled 60 of President Clinton’s judicial nominees, bottling them up in committee and denying them even a hearing. Now it’s payback time, and Republicans are guilty of “selective outrage,” says congressional analyst Charles Cook, publisher of the highly regarded Cook Report.
Republicans have always chafed at the way Democrats played to racial and gender identity, but now the Republicans are doing the same, clustering three female nominees together to embarrass Democrats who vote against them as “antiwoman.” Janice Rogers Brown, Carolyn Kuhl and Priscilla Owen are indeed women, but their records suggest that they would support rollbacks in women’s core legal rights-not only the right to choose, but workplace protections and laws penalizing violence against women. These are lifetime appointments, and the Republican right is looking to the courts to change society and the modern culture in a way that the legislative branch cannot.
There are only two ways to resolve the judicial fight, says Tom Mann, a congressional scholar at the Brookings Institution. Either the Republicans resign themselves to getting most of Bush’s picks, and forget about martyring the handful who are blocked, or the Republicans get a filibusterproof Senate. That would require picking up nine seats, and that’s not going to happen in 2004, and probably not 2006. The alternative is the nuclear option-changing the rules on filibusters-but there are enough Republican senators who utilized the filibuster when they were in the minority and would oppose blowing up a tool they again might need in the future.
There is room for compromise. Even New York Sen. Chuck Schumer, who is leading the fight for the Democrats, would accept a deal where some of the Bush judges are paired with Clinton nominees who got stiffed, and they all get through. Or the Republicans could simply accept reality. A president who lost the popular vote, and whose popularity today is an anemic 51 percent, is not going to get every judge he sends up. “But that would be in a sensible world,” says Mann. “The Congress today is much too ugly, divided and brutish, so we live with the dramatics.”
