Analysis: Judges and culture war politics

WASHINGTON, April 21 (UPI) -- With the Senate embroiled in a procedural fight over President Bush's judicial nominees and embattled House Majority Leader Tom DeLay, R-Texas, leading a growing conservative attack against the federal judiciary, a partisan battle royal is brewing over judges.

But the fight extends far beyond Capitol Hill, reflecting a relatively new front in the nation's culture wars that promises to remain a top legislative issue.

Republicans in the Senate Thursday moved closer to a showdown over whether the GOP can end the filibuster of Bush's judicial nominees that Democrats say are too conservative.

Republicans leaders have threatened to end the minority party's ability to use the procedural maneuver on designates for the federal bench.

In a party-line vote, the Republican-controlled Judiciary Committee reapproved the nominations of Texas judge Priscilla Owen and California judge Janice Rogers Brown to lifetime appointments on regional appellate courts.

Moderate GOP committee Chairman Arlen Specter, R-Pa., took to the Senate floor following the vote and delivered a lengthy address urging lawmakers from both parties to base their decisions on the two jurists on their own thoughts and not just follow the party line.

"Central to deliberation is thought, and thought requires independence, not response to party loyalty or any other form of dictation," said Specter.

While Specter's address seemed to indicate a leaning against ending the ability of senators to filibuster nominees as Republican leaders have proposed, he said he had not made up his mind about whether to support that effort.

Previously blocked by Senate Democrats from receiving the up-or-down votes that GOP proponents say they deserved in the last Congress, Senate Majority Leader Bill Frist, R-Tenn., is expected to make good on the his pledge to invoke the GOP's so-called "nuclear option" -- or "constitutional option" as Republicans have begun to call it -- soon after bringing the nominations to the Senate floor and Democrats attempt to block them.

This could occur as soon as next week, although it likely will be delayed in favor of consideration of a long-stalled 6-year transportation funding bill.

In an attempt to dispel the slippery slope argument against ending the judicial filibuster used by critics from across the ideological divide, Frist pledged Tuesday to limit the ban on filibusters to judicial nominees.

But the pledge carried little weight with Senate Minority Leader Harry Reid, D-Nev., and other Democrats who have vowed to shut down the body for all but the most pressing of matters if the Republicans attempt to make the change in a way that critics contend is in violation of Senate procedure.

While Republican arguments against the Democrat's filibusters have multiple facets, two major themes stand out.

One is a primarily procedural argument: That Democrats are abusing the Senate process and reversing years of tradition by preventing the Senate from voting on the nominations.

Democrats counter that Republicans are the ones who are reversing Senate history by trying to change the body from one where majority power is balanced through procedural rules to one where the majority can impose its will on the minority whether it has the support required or not.

Reid and other critics of the proposed GOP response are quick to note that only 10 of 205 Bush judicial nominees -- those they contend are the most conservative and controversial -- have been blocked.

This is far less than the 60 of President Clinton's nominees that did not receive floor votes, some even committee votes, because of GOP procedural maneuvering.

They also points to the 11 judicial nominations from 1968 to 2000 that required 60 or more votes to end a filibuster of the nominee for historical precedent.

Another major argument raise by Republicans is that "obstructionist" Democrats are preventing perfectly good judges from filling long-empty court seats to help ease the backlog of federal court cases.

"It is important to us as U.S. senators to respond to these emergencies," freshman Sen. David Vitter, R-La., said Thursday in a Senate floor recitation of GOP talking points.

It is important to note that during the Clinton administration, Senate Republicans argued that there was not a judge crisis.

In the end, Democrats contend that what Republicans are after is nothing as noble as protecting the will of the people or constitutional power as some contend.

"This not about the constitution or scholarly works," said Reid's spokesman, Jim Manley. "It is about packing the courts and clearly the way for a Supreme Court nominee."

It remains unclear whether Frist even has the votes to ensure the move is successful, so Democrats' blustering could be all for nothing, but there are clear political and ideological motivations in the broader battle that are driving both sides.

The Christian right has made the unapproved nominees and what they call "liberal judicial activism" its top cause, especially in the wake of the Terri Schiavo case and attempts by lawmakers to insert themselves into the judicial process.

With Frist possibly looking to a presidential run in 2008, he must shore up support from this powerful sector of his party to ensure any chance of a serious bid for the GOP nomination, and many GOP lawmakers facing re-election in the coming years face similar pressures.

In the last Congress, Senate Republicans accused Democrats of being anti-Catholic for blocking the nomination of Alabama judge William Pryor, who Bush ultimately made a federal appeals court judge with a recess appointment, and against minorities for blocking Brown, who is black.

A similar tactic is being displayed this year. Frist is scheduled to address a meeting of Christian conservatives on April 24 with a taped message saying the Democrats' opposition to Bush's judicial nominees shows they are "against people of faith."

For their part, Democrats are painting the GOP are hubristic power-mad leaders willing to do whatever it takes to make sure their will is done and using the issue as a fundraising tool.

More broadly, one must only look to the burgeoning fight over the role of Congress in overseeing the judiciary to see the ideological and cultural stakes involved.

While brewing for several years, it really broke out in the wake of Terri Schiavo's death.

Sen. John Cornyn, R-Texas, suggested soon afterwards that the recent spate of violent acts aimed at judges around the county was somehow motivated by feelings of distaste toward so-called "activist judges" who interpret the law in a way that conservatives feel reflects too liberal an ideology.

DeLay made the now-infamous comment that those responsible for her death would answer for their behavior, statements that he categorized last week as "inartful."

However, in the nearly next breath, DeLay pledged to continue the sort of judicial oversight typified by the GOP's effort to roll back federal court power over certain matters, such as homosexual marriage.

He also pledged that the House Judiciary Committee would investigate how to respond to judges that do not meet the constitutional mandate that lifetime appointees to the bench uphold "good behavior," which is expected by many to result in an effort to codify what that term means.

This week DeLay intensified his criticism of federal courts, attacking Supreme Court Justice Anthony Kennedy's work in a Fox News Radio interview as "incredibly outrageous" because he has referenced international law in his decisions and done research on the Internet.

"I was talking about the Supreme Court using foreign law to make their decisions," DeLay said Wednesday. "This is an important issue that will be taken on by the Judiciary Committee."

Democrats dismissed DeLay's criticism as further evidence of GOP hubris run amok as their leaders dismiss the judiciary's role as a constitutionally mandated check and balance on the other branches of government.

House Minority Leader Nancy Pelosi, D-Calif., told United Press International at a briefing Thursday that DeLay's attacks on the judiciary demonstrate the GOP's lack of respect for the separation of powers.

Pelosi argued some Republicans' criticism of the Supreme Court's Marbury vs. Madison decision was an extension of their attempts to strip power federal courts held over issues.

That 1803 ruling in effect made the Supreme Court an equal partner in the government to the other branches of government by codifying the power of the high court to rule on the constitutionality of executive and legislative decisions.

"I think this is a continuation of the lack of respect (displayed by the GOP leadership) for the separation of powers," Pelosi said.