Why were George W. Bush and Senate Republicans so obsessed with getting ultra-conservative (radical-reactionary) candidates rubber-stamped to serve as lifetime judges? In his appointments to federal appellate courts, where most of the decisions are made, why did Bush II refuse to consult with members of both parties to find consensus justices who are agreeable to all Americans? Regrettably, because of the compromise of May 23, 2005 , the Senate “consented” to three extremist judges on narrow party line votes! Priscilla Owen, Janice Rogers Brown, and William Pryor probably never would have been appointed or approved if the rule of “advise and consent” had been practiced. Incredibly, even though the President claimed to have “consulted” with some Democrats on the replacement of Sandra Day O’Conner, he reportedly never mentioned that he was thinking about appointing John Roberts as the Chief Justice of the United States.
Part of the answer may be found in Mr. Bush’s determination to turn the judiciary into an arm of the executive branch – as long as the President is a Republican. We can see this in his unprecedented temporary appointments of Charles Pickering and William Pryor to appellate courts while the Senate was not in session. Though unpopular and done only occasionally, Presidents can temporarily appoint someone whom the Senate has refused to approve to an office in the executive branch. Politically divisive, recess appointments are reluctantly accepted only because the appointee, after all, will be working for the President – and only for a limited time.
This was not the case with Pickering and Pryor. They were appointed to the judicial branch, which is supposed to be independent and a check on the other two branches. These two judges were not approved by a bipartisan Senate. In effect, they worked for the President, and if either wanted Mr. Bush to resubmit his name for permanent confirmation, he would have had to do the President’s bidding! Incredibly, he was allowed to get away with this! We can imagine what would have happened had Bill Clinton pulled a stunt like that!
Another explanation is that Mr. Bush wanted to appoint judges who would be willing to limit individual rights. He said he wanted justices who will be “strict constructionists” in their interpreting the Constitution. His model for this was Robert Bork, (pictured, right) but Bork’s extremist views prevented his confirmation by the Senate when Reagan tried to appoint him to the U.S. Supreme Court. Bork insisted that the 9th Amendment had no validity and was not worthy of ever being considered because it contained no specific rights! Article IX of the Bill of Rights states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Right-wing extremists hate it! It means that even though some rights are listed in the Constitution, there are many other rights that we also possess.
You may think you have the right to see a movie, read a book, attend a meeting, listen to a recording, shop at a store, get service from a professional, enjoy the privacy of your own home, or any number of other things. However, the next time you say, “I’ve got a right,” you better stop and make sure that right is spelled out in the Constitution. If it is not and if the Republicans stack the courts their way, your case may be dead on arrival. The right to privacy and the right to have control over your own body are in the Ninth Amendment for anyone who still believes this is a free country to see. It is not that it is difficult for Robert Bork and his fellow “strict constructionists” to comprehend this amendment – it’s just that they don’t like it! Mr. Bush and the Republican Party wanted as many Bork clones on the courts as he could get.
A third explanation is that Mr. Bush and his party wanted judges and justices who were willing to allow the USA to become a theocracy. They wanted justices whose personal religious beliefs would determine their rulings and who know how you should live your life. For example, Judge Priscilla Owen is an evangelical Christian who opposes abortion. Consequently, she routinely refused to honor a Texas law that was carefully drafted to protect minors from being harmed by parents who might become abusive if they found out their daughter was pregnant!
The appointment of William Pryor is particularly instructive. Pryor wrote a brief in which he equated gay and lesbian relationships with “prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.” The question that begs to be asked is this: Why did Mr. Bush nominate someone like William Pryor to anything? Pryor certainly should never have been given a lifetime appointment in which he is expected to treat each and every one of us equally and to render judgment impartially. The reason he was appointed is quite simple: the Jerry Falwells, the James Dobsons, and the other evangelicals, who take credit for getting Mr. Bush elected and are the most consistant popular base of the Republican electorate, demand people like this to be appointed.
Finally and most importantly, Mr. Bush wanted to appoint those whose rulings would favor the plutocracy: He wanted justices who will favor big business and individuals earning more than $300,000 per year – those who will support a return to the Gilded Age, the days of the robber barons of the 1880’s and 1890’s . That’s the time before Theodore Roosevelt, FDR, and LBJ! The President’s contributors anticipate a return to the time of laissez-faire and only corporate welfare – a government with a hands-off policy that gives a helping hand only to the wealthy and Big Business.
Mr. Bush liked Priscilla Owen’s pro-corporate and anti-consumer rulings in Texas. He sympathized with Janice Rogers Brown’s denunciations of the Supreme Court rulings that upheld many of the New Deal programs like Social Security and the minimum wage. He agreed with William Pryor’s attempts to weaken the federal government’s enforcement of the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Civil Rights Act of 1964. We need to recall that Benito Mussolini, the WWII Italian dictator (pictured, left), said that “Fascism should more properly be called corporatism, since it is the merger of state and corporate power.”
Unfortunately, Bush II appointed John Roberts as chief Justice because he fit all of the above qualifications. Historically, there is hope that while on the Supreme Court he will assert an unexpected independence. However, the confirmations of Owen, Brown, and Pryor give us a clear conception of what Mr. Bush’s Republican Party is looking for and what they expect. Basically, it wants outside-the-mainstream judges who will not be independent of Republican presidents and whose rulings will toe the Republican Party line that opposes the basic human rights of individuals but favors the ideologies of religious political extremists and “the haves and have-mores.”
by David Offutt
This is a slightly revised version of anessay that was published August 11, 2005, in the El Dorado News-Times as a letter to the editor.