Fair Courts

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Judging Judges: A New Look at the Senate Controversy

Senators began debating Wednesday night, and concluded Friday morning, November 14, 2003; they talked for 39 hours about judicial nominations. With all of the unresolved issues facing the US, does this topic deserve such intense attention?

Perhaps. The Senate's unique duty to consent to judicial nominees is a valuable check on the power of the executive branch. In constitutional theory, the President cannot give away powerful judgeships to his favorite friends. The Senate prevents an autocracy by ensuring that nominees are qualified.

At issue is the meaning of "qualified." During the marathon debate, Republicans described "qualified" as an illustrious career in law. Democrats agreed, but added onto that definition. Democrats believe that a nominee's ideology must fall within the boundaries of the political mainstream. Their philosophy is that the American public is not well served by an extremist judge. This point of view is certainly reasonable, but dragging behind it are questions not easily answered. Where are the boundaries of mainstream? When does one pass into extremism? Aren't the borders between center and right in the eye of the beholder?

All presidents choose nominees in their own image; their judicial appointments are often the most lasting part of their legacy. The power of their appointees reaches far past a four or even eight-year presidential term. The lasting effects of an appointment are one reason that both sides are taking the matter so seriously. But are Democrats blocking nominations just because the nominees look and feel like George W. Bush?

A wolf in sheep's clothing

But the nominees don't look like Bush. The last three nominees to be blocked by Democrats were women. At first glance, this looks extraordinarily odd. Aren't Democrats the group that touts women's rights?

According to Democrats, these nominees are wolves in sheep's clothing. They are women, but their agendas do not support women's rights. The records of Priscilla Owen, Janice Rogers Brown, and Carolyn Kuhl reflect that they are against a woman's right to choose, and Janice Rogers Brown, an African American, is also against affirmative action.

Cheryl Cooper, president of the National Council of Negro Women, explains that the gender and/or race of these nominees protects them from accusations that they are against women's rights and civil rights (as defined by women's rights and civil rights groups), though their records show that they are.

Dueling feminisms

Republicans assert that Bush's nominations of women prove the President's commitment to the advancement of women. Assuming that Republicans are not referring to these three women only, this claim engages the feminist argument that women in positions of power will facilitate gender equality. This brand of feminism assumes that there is something inherent to women that makes them alike each other, different from men, and therefore, more likely than men to be leaders who promote equality between the sexes.

Within this debate, Democrats maintain that women or people of color should not be nominated simply because of their gender or race. Their arguments utilize the feminist philosophy that gender and race do not dictate a person's disposition or leadership style. This style of feminist thought critiques the other's essentialism, or, the assumption that all women are the same in some fundamental way.

Both Republicans and Democrats are accusing each other of being anti-woman. But in fact, the other side has simply employed a different form of feminist theory. Most contemporary feminist theorists criticize the idea of essentialism; they believe that gender is socially constructed, not inherent to one's biology.

Minority rights

Judicial nominations are entangled with minority rights in another way. The epic debate was filled with disputes over the use of the filibuster, which is the constitutional right of the minority to block a vote through extended debate. In order to stop a filibuster, the Senate must have 60 votes, called cloture.

Since the Senate is divided almost evenly (51 Republicans to 49 Democrats), there is no hope of cloture. And Republicans feel that the Democrats are abusing their right to filibuster. They claim that no minority has ever used the filibuster to block nominations as often as this group of Democrats has. Democrats retort that they have blocked only six of 168 nominations.

To Republicans, six is far too many. They accuse Democrats of breaking with tradition and abusing the rules of the Senate in the name of partisan politics. But perhaps the break from tradition is due to historical circumstances. Specific conditions make it likely for a relatively large number of nominees to be blocked through filibuster. If the executive and legislative branches are ruled by a single party, and if the parties are clearly divided on issues that judicial appointees can greatly influence, then filibusters are likely.

When all of this comes together, as it has since the 2000 elections, it may be inevitable that the minority uses its constitutional power to prevent the tyranny of the majority. And naturally, the majority believes that it is the minority that is tyrannical.

Whirling dervishes

Both sides are spinning the issue, and everyone is dizzy. The whirling rhetoric is in danger of enveloping the delicate debates, which are sinking below the view of much of the press and TV.

As usual, detailed differences in philosophy are responsible for the fight. It is WomenMatter's responsibility to present those philosophies so that each of us can create an informed opinion.

To read more on this topic, click here. To discuss this issue with other WomenMatter readers in one of our online forums, click here. You can also contact your representatives and let them know what you think.

Posted on: 11/17/2003

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