I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, January 12, 2006

GOP's fun and games with bigotry accusations

The reason Republicans are so very upset over the CAP questioning of Alito is because they have embraced a strong and principled refusal to introduce concepts of race and bigotry into the confirmation process for judges. For that reason, the media are taking quite seriously Republican objections to the Alito questioning because Republicans would never raise such issues as part of the debate over judicial nominees.

For instance, during the Democrats’ filibuster over Miguel Estrada’s nomination to the Court of Appeals, National Review published an article entitled "Democratic Racism," the first paragraph of which said this:

Given his record, why did these Democrats block Estrada's nomination? Put simply, because he is a Hispanic who broke from the party fold. Despite their inevitable protesting to the contrary, it is clear that Ted Kennedy's gang of 45 discriminated against Estrada because he is Hispanic . . . . Indeed, if Congress were an ordinary employer and a federal judgeship were treated as a job under federal antidiscrimination law, then Estrada would likely win on a claim of employment discrimination.

The accusation wasn’t confined to Republican magazines, as Jonathan Chait in the LA Times explained:

Republicans widely insinuated that Democratic opposition to the nomination of Miguel Estrada as a federal appellate judge was racist. Trent Lott — Trent Lott!, the man who was forced to step down as majority leader because he praised the segregationist candidacy of Strom Thurmond! — asserted, "They don't want Miguel Estrada because he's Hispanic."

This is how the dignified GOP Judiciary Committee member Charles Grassley put it:

"If we deny Mr. Estrada the position on the D.C. Circuit, it would be to shut the door on the American dream of Hispanic-Americans everywhere."

Republicans also explained how Democratic opposition to conservative nominee William Pryor was due to the fact that Pryor is Catholic and Democrats are, of course, anti-Catholic bigots:

When Democrats opposed the nomination of extremely conservative Alabama Atty. Gen. William Pryor, Republicans insisted it was because Pryor is Catholic. (Democrats said they didn't even know Pryor is Catholic until a Republican brought it up in hearings.) The Committee for Justice, a group linked to the White House, ran TV advertisements portraying a locked courthouse with the sign, "Catholics need not apply."

The same National Review article said the anti-Hispanic Democratic bigots were blocking Estrada’s nomination just "like they discriminate against another nominee, William Pryor, for his devout Catholicism."

And here is the dignified and distinguished Republican Senator from Alabama, Jeff Sessions, during the Judiciary Committee's hearings on William Pryor:

Senator JEFF SESSIONS (Republican, Alabama): The ranking member protests that he is not anti-Catholic and he's offended that anyone suggested that he is. Well, let me tell you, the doctrine that abortion is not justified for rape and incest is Catholic doctrine. It is a position of the pope and it's a position of the Catholic Church in unity. So are we saying that if you believe in that principle, you can't be a federal judge? Is that what we're saying? And are we not saying then good Catholics need not apply?

Democrats don’t just hate Hispanics and Catholics, but women as well, which is, of course, why they have opposed the nomination of some of them to the federal court:

When Democrats opposed Priscilla Owen, another very conservative nominee, Atty. Gen. John Ashcroft blustered, "Senate Democrats have indicated an unfortunate trend toward unfairness against qualified women nominated by this administration."

And then there were the accusations that Democrats opposed the nomination of Janice Rogers Brown because they were racists who wanted to keep black judges off of the court:

Virtually every time the Democrats objected to one of Bush's judicial nominees, the president's allies accused them of discrimination. Take, for instance, Janice Rogers Brown, the California Supreme Court justice who Bush nominated for a federal appeals court job. She speaks about government in the raving tones of a militia member and believes that the sort of government role in the economy most Americans have taken for granted since the New Deal is not just wrong but unconstitutional.Now, you would think that the Democratic opposition to Rogers as a federal judge is probably related to her desire to use the courts to impose her Dickensian vision upon an unwilling public. Instead, Republicans have insisted the Democrats must be motivated by bigotry.

Sometimes this argument has been subtle. ("I would hope that today the filibuster would not be used to deny an up-or-down vote on Janice Rogers Brown, because every parent deserves to dream for every child that they'll have a chance," argued one GOP senator.) Other times it has been more crude. ("Why are they afraid to put a black woman on the court?" asked one conservative black minister at an event with Senate Republican leader Bill Frist.)

So that's why Republicans are so offended by this questioning of Alito. They have declared the distasteful issues of race and bigotry off-limits in the confirmation process and they don't understand why Democrats won't do the same.

And unlike Alito’s wife, I’m sure that the wives of the Democrats on the Senate Judiciary Committee really love it when their husbands are attacked with these vicious, overt accusations of racism and bigotry. Maybe if one of them had cried in front of a camera over it we would have heard a little more about these "disgusting" and "shameful" accusations.

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