The "nuclear option" to upend the filibuster and push through seven of the most ideological judicial nominees is still being threatened, and so the rhetoric from the right keeps a-coming. We normally wouldn't be quite so excited about a change in parliamentary procedure, but then again, this isn't a normal Senate majority. What we are dealing with is an unprecedented power grab, and any talk of principle is transparently a matter of exigency -- they need to clear through through these nominees to pave the way for a revolution in the Supreme Court -- lurching further right than either the Republican Party or the religious right really seem to understand -- and they need to do it now. If it means breaking the Senate rules to change the Senate rules, then so be it.

MYTH: Filibuster against "people of faith"

I mean, I think what‘s happened here, it‘s not us, it‘s not the president that has interjected religion into this debate.  It‘s a handful of Democrats that have been leading this filibuster.  And it‘s senators like Charles Schumer who have questioned the ability of certain candidates to be judges, like William Pryor and Leon Holmes based upon their—quote “deep personal beliefs.” And that goes back to their faith as Catholics, in Bill Pryor‘s case, that, because of his position in his religion, is subscribing to tenants [sic] of that faith, that he would be opposed to abortion.  And that‘s wrong.  Shouldn‘t be that way. (Tony Perkins, President of the FRC and organizer of "Justice Sunday," Scarborough Country, MSNBC, 4/28/05)

Conservative advocates fighting to restore the right to a simple up-or-down majority vote on judicial nominees see their opponents as hostile to people of faith and deeply held conservative values. Most, if not all, of the Bush nominees denied a vote by Democrats, easily fit this description. (Donald Lambro, "Who's on the high ground?" Washington Times, 5/2/05)

REALITY

The "Justice Sunday" telecast, beamed to churches as if from on high, went of as planned -- the Family Research Council claims 61 million viewers, although that number is likely inflated -- with its dubious overtones of "the filibuster against people of faith." Since basically the entire Congress is Christian or Jewish, it is clear that Perkins is only counting people who subscribe to his peculiar notion of partisan religion, where "faith" is just another word for "Republican."

But what's so strange is that the nominees being filibustered and not noted for being part of Perkins' evangelical-political movement. As we have pointed out (see here and here), they are creative ("activist") interpreters of the Constitution who general subscribe to the pro-industry, anti-government ideology of the other camp of Republicans. For example, Janice Rogers Brown has called Social Security "cannibalism" and a "socialist revolution."

The only judge that comes to mind to fit in the agenda of the religious right would be Roy Moore, the Alabama Chief Justice who insisted on having the Ten Commandments in the state Supreme Court room. In a twist of fate, the Attorney General who removed him from office for disobeying the law in that case, William Pryor, is now being trumpeted as a victim of religious discrimination. Does that make any sense?

MYTH: Dems blocking nominees are racist and sexist

When George W. Bush became president in 2001, the legal left and the Democratic party rallied around the slogan "No more Clarence Thomases." By that they meant that they would not allow any more conservative African Americans, Hispanics, women, or Catholics to be groomed for nomination to the High Court with court of appeals appointments. The Democrats have done such a good job of this that, today, the only names being floated as serious Supreme Court nominees are those of white men. (Stephen G. Calabresi, "Minority rule?" Weekly Standard, 5/9/05)

Democrats oppose Janice Rogers Brown because she's black.... There's a whole array of groups opposed to Brown: People for the American Way, the National Women's Law Center, NARAL Pro-Choice America, the Feminist Majority, the Aryan Nation and so on. (Ann Coulter, "Drag liberals into the light," 4/28/05)

REALITY

This is an old favorite of Republican dirty politics -- we saw it with Rice and Gonzales, and now, when the "faith" argument fails, we see it with judges. You can take a look at the selection of nominees being blocked and decide for yourself. Bunch of white guys, plus Brown and Owen. The latter happened to be chosen for this "nuclear" showdown -- if we were more cynical, we would say they were chosen for this very cheap shot.

But the fact is, their records are just as bad or worse than the others. That is why they shouldn't be on the federal court.

MYTH: Brown & Owen have "impeccable" records

It is Brown and Owen who represent mainstream opinion in this country--not the Senate Democrats who have been using the filibuster to block their confirmation to the federal bench. (Stephen G. Calabresi, "Minority rule?" Weekly Standard, 5/9/05)

As I understand it, the reason Democrats are in a blind rage about Priscilla Owen is that, as a state court judge in Texas, Owen interpreted a law passed by the Texas Legislature requiring parental consent for 14-year-old girls to have abortions to mean that parental consent was required for 14-year-old girls to have abortions. (Ann Coulter, "Drag liberals into the light," 4/28/05)

They do not want any judge anywhere near the Supreme Court who will not swear unwavering devotion to abortion-on-demand by judicial fiat. In other words, Janice Brown faces a new form of discrimination: She is seeking a position for which Democrats will not approve any intellectually honest person. (Terence P. Jeffrey, "A savvy justice stalled," Washington Times, 4/30/05)

REALITY

Let's go into more depth on these supposed paragons of judicial wisdom.

Priscilla Owen has been called a judicial "activist" by none other than Alberto Gonzales, the current Attorney General and a former colleague of Owen's on the Texas Supreme Court. In a number of cases, Gonzales and the rest of the court criticized her for undermining the legislature by finding exceptions and immunities which were not actually in the statutes in question. Just one example:

Responding to a certified question from the federal Fifth Circuit, Gonzales wrote the majority decision that held that a Texas law requires manufacturers of harmful products to indemnify sellers who defend themselves from litigation related to their sales of these and similar products. A dissent authored by Owen would have effectively rewritten Texas law to preclude such third-party relief in some cases. Gonzales wrote that adopting the manufacturer’s position, as Owen argued, would require the court to improperly "judicially amend the statute."

You can read more on her creative dissents -- dissents from a Gov. Bush-appointee--packed court -- here.

Janice Rogers Brown represents the far, far right in legal thinking. Her dissents, often alone, are typically infused with her own conservative views rather than any case law or statutory reading. Her reading of existing laws would, in many cases, override the legislature -- for example, discrimination, family rights, consumer protection, and freedom speech. At the same time, her Constitutional views would topple the history of federal government from above -- leaving nothing but her own dang opinion.

In particular, in opinions and especially various Federalist Society speeches, she has revealed a kind of "radical libertarian judicial activism." Her view of the New Deal -- Social Security and all that -- is that it "marks the triumph of our socialist revolution." Basic civil rights are inapplicable in her world-view: "The United States Supreme Court, however, began in the 1940s to incorporate the Bill of Rights into the 14th Amendment…The historical evidence supporting what the Supreme Court did here is pretty sketchy…The argument on the other side is pretty overwhelming that it’s probably not incorporated." And she seems to take pride in her own sense of judicial activism, as if she were America's black-robed messiah, come to heal us of our wrongful American way.

The nation envisioned by Owen and Brown would be unrecognizable to Americans today. They are so far from the mainstream they might as well be on another planet.