Let me very clear. The constitutional option remains on the table. It remains an option. I will not hesitate to use it, if necessary. (Sen. Bill Frist, 5/24/05)

This deal does not take the constitutional option for accomplishing this goal off the table. (Sen. Orrin Hatch, 5/27/05)

With the Senate on break, the non-stop nuclear circus has abated somewhat. But that doesn't mean the right wing wants to ease up -- their absolutist mission requires a constant barrage of counterfactual, inflamed rhetoric.

The focus has shifted from the four-odd blocked appellate nominees to the upcoming debate over the Supreme Court, as Rehnquist is expected to retiire this summer. But the two basic myths remain the same: somehow, "liberals" control the courts, creating a crisis, and Democrats are out of line in seeking to moderate extreme appointments.

MYTH: Dems use courts for their "liberal agenda"

For all their talk about counting every vote and fair elections, they rightly believe that the only way they can advance their unpopular liberal agenda is by judicial fiat. So, they seek to pack the federal appellate courts through the backdoor by leaving vacancies on key courts where Clinton judges are more numerous, rather than filling them with the President's nominees. (Mark Levin, "Call them the sellout seven," Human Events, 5/27/05)

Having resigned itself to the unlikelihood of achieving its goals through the legislative process, the left doesn't even bother to explain how it can reconcile the courts assuming a lawmaking role. (David Limbaugh, "Compromise or cop-out?" Washington Times, 5/26/05)

Democrats consistently rely on judges to impose legislation that they can't get through the normal democratic process because majorities don't want it. (John Leo, "Picking the next justice," Town Hall, 5/30/05)

Democrats are so weak in the legislatures of America they can no longer make law. Consequently, they rely on their activist judges to make law for them. (R. Emmett Tyrrell, Jr., "A battle delayed," Washington Times, 5/27/05)

Their goal was to deny nominees who didn't ascribe to a liberal activist agenda.... We exposed the judicial filibuster for what it is - an utterly ideological power grab by the other party. We exposed it as a tool for the minority to deny judicial nominees who don't fit their liberal activist agenda. We exposed it as a tyranny of the minority. (Sen. Bill Frist, GOPAC dinner, 5/25/05)

REALITY

We've dealt with this several times in the clearest way we can -- by showing that the federal judiciary is dominated by Republican appointees.

For example, Republican-appointed judges hold majorities on 10 of the 13 circuit courts of appeal. And, as Dwight Meredith succinctly summarizes, all levels of the judiciary are overrun with conservatives:

In the last thirty-five years (since 1969) there have been thirteen appointments to the Supreme Court. Republican Presidents have made eleven of those appointments while Democratic Presidents have made two. At the Circuit Court of Appeals level, the pattern remains the same. Since 1969, Republican Presidents have appointed 211 Judges to the Circuit Courts. Democrats have appointed 122. Since 1969, Republican Presidents have appointed 813 trial Judges to the District Court bench while Democrats have made 508 such appointments. (Dwight Meredith, Wampum)

In other words, Republican presidents have made 62% of appointments to district courts, 63% of appointments to circuit courts, and 85% of appointments to the Supreme Court over the last 35 years. A second Bush term will no doubt improve that average.

This is no surprise to those of us who remember a time before, say, two years ago when the right's court campaign really ramped up. The Rehnquist Court has long been considered exceptionally conservative, mapping out a distinctly rightward march for our country on issues such as federalism, criminal justice, and appointing presidents.

And yet, we're supposed to believe not only that all of these Republican appointees are liberals, but that Democrats are somehow puppeteering the whole program! A story similar to the Manchurian Candidate, in which (so they're saying) Democratic operatives secretly implant mind-control devices in young, conservative lawyers, wait twenty or thirty or forty years until these lawyers get appointed to the judiciary, and then zap! They are under our command.

In reality, the leadership cadre of Republicans is currently packed with those who promote a relatively new legal doctrine -- some call it the "Constitution in exile" or the "Lost Constitution," while others stick to an ad-hoc "originalism"-ism. This new wave and its fellow travelers find support from both extreme wings of the party. So-called libertarians love it because it calls for undermining the power of government to regulate the environment, enforce labor laws, and carry out Social Security, while the religious right believes (almost spuriously) that most of these judges will sign on to their moral authoritarianism.

Bush, Frist, and the right-wing commentariat call these radicals "conservative," but they go far beyond anything in the mainstream. This is the real "utterly ideological power grab" -- an attempt to pull an already heavily-conservative judiciary way off the deep end.

COROLLARY: Judge So-and-so is a liberal activist

Justice Margaret Marshall said, "Our courts function as a pressure valve to defuse political and social tension." ... Where in the Constitution -- federal or Commonwealth of Massachusetts -- did this lady divine the notion that appellate courts are to take it upon themselves to set policy? ...

When its guard is down, the left openly admits it philosophically supports judicial activism as a way to establish policy. Having resigned itself to the unlikelihood of achieving its goals through the legislative process, the left doesn't even bother to explain how it can reconcile the courts assuming a lawmaking role. (David Limbaugh, "Compromise or cop-out?" Washington Times, 5/26/05)

I truly don't know of any "conservative" judges who believe in judicial activism. (Limbaugh)

What distinguishes the president's nominees from what in the recent past have been the Democrats' nominees is that the president's nominees pledge that their judgments will be restrained by written law, and the Democrats' nominees make no such pledge. Obviously the judicial nominee who pledges to be restrained by the law cannot possibly be an "activist." The Democrats' nominees can be as "activist" as they want. (R. Emmett Tyrrell, Jr., "A battle delayed," Washington Times, 5/27/05)

Among the messages sent by this agreement is that it is perfectly fine to be an activist liberal judge on the Supreme Court if you're nominated by a Democrat president. You just can't be a conservative one and, if you are, you are unlikely to reach the bench. (Armstrong Williams, "Judicial nominations," Town Hall, 5/30/05)

REALITY

Limbaugh's representative of the "left," Justice Margaret Marshall of the Massachusetts Supreme Judicial Court, is a strange selection. Not only does he quote her and then ascribe her quote a plainly different reading, and not only does he confuse the job of the federal judiciary to protect rights under the U.S. Constitution with the job of the court of some state (presumably with its own constitution), but he seems not to care that this judge was appointed by a Republican governor (William Weld), and promoted to Chief Justice by another Republican governor (Paul Cellucci). Here's another quote from Justice Marshall: "I'm a conservative judge, in the sense of conserving institutions and being extremely cautious in every decision I make."

From the same profile:

In 1986, she successfully represented the Massachusetts Taxpayers Foundation, a conservative antitax group, in a suit challenging the constitutionality of a graduated tax cut for low-income families. In 1992, she worked for a consortium that wanted to stop a ballot referendum that would require businesses to disclose their state tax payments. The ballot work was pro bono: Marshall lost, but after donating $75,000 worth of her time to a cause close to the corporate heart.

She doesn't sound like your typical liberal Democrat, does she? I mean, there are still one or two real, live liberal judges out there he could have picked. But to Limbaugh, I guess, anyone who happens to differ from his views must be on the "left."

In fact, for conservatives, that is pretty much the definition of "liberal activist" -- anybody who happens to disagree with their radical worldview. It makes little difference, it seems, that right-wing ideologues are the ones trying to recreate society in their image.

For example, take Janice Rogers Brown, (please!), a heroine to these ideologues. She has made abundantly clear to all her radical view on government. She has called New Deal programs like Social Security -- perhaps the most popular government program in the history of man -- "the triumph of our own socialist revolution," and in particular she is a fan of a Gilded-Age Supreme Court ruling called Lochner vs. New York (1905), also known as the "bloody muffin law," a decision that prohibited the state from regulating obscene working hours:

Section 110 of the labor law of the State of New York, providing that no employes shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day, is not a legitimate exercise of the police power of the State, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relation to labor, and, as such, it is in conflict with, and void under, the Federal Constitution.

In his dissent, Justice Oliver Wendell Holmes, Jr., wrote that the "Constitution is not intended to embody a particular economic theory," especially one "which a large part of the country does not entertain" -- that is, the complete subordination of public policy to elite corporate whim.

Thankfully, Lochner was reversed, and for most of the last century we have elevated the playing field by regulating, with care, the bottom-feeding excesses of business, while at the same time growing into the strongest economic power the world has ever known. Yet for a tiny group of elites, this victory for prosperity and dignity is instead a defeat, and they seek jurists like Brown to impose, from the courts, a reversal of the last hundred years.

Brown might "pledge to be restrained by the law" -- she just has a weird interpretation of what "the law" is.

So who is the activist? Those who feel bound by precedent, reason, and democratic interest, or those who hold obscure theoretical views with radical, catastrophic consequences?

MYTH: The filibuster is unprecedented; Dems are abusing the confirmation process

We could have used the filibuster to prevent confirmation of judicial nominations, but we did not do so. In 2003, after 214 years, that tradition changed when Democrats blocked confirmation of 10 majority-supported appeals court nominees by preventing any confirmation vote at all. The ends, however, do not justify the unconstitutional means. We must restore the Senate tradition of up-or-down votes for judicial nominations reaching the Senate floor. (Sen. Orrin Hatch, "Nuclear option still on the table," Human Events, 5/27/05)

For 200 years the Senate carefully considered the professional track record of any judge nominated for the federal bench. That changed four years ago when ranking Democrats decided to turn the Senate Judiciary Committee into their own personal meat grinder. [...T]hese Democrats resolved to torpedo most of President Bush's nominations. (Armstrong Williams, "Judicial nominations," Town Hall, 5/30/05)

Their goal was to deny nominees who didn't ascribe to a liberal activist agenda. With the judicial filibuster as their tool, a minority of senators vetoed 10 of the President's judicial nominees. This judicial obstruction was unprecedented.... [J]udicial nominees that come to the floor deserve up-or-down votes regardless of which party controls the White House or the Senate. (Sen. Bill Frist, GOPAC dinner, 5/25/05)

REALITY

Once again -- we have already tried the most direct refutation of the unprecedented line, listing judicial filibuster from the past: Fortas, Rehnquist, Breyer, Wilkinson, Fitzwater, Manion, Carnes, Sarokin, Stewart, Berzon, Paez ...

In fact, Bill Frist himself voted to filibuster Richard Paez, a Clinton nominee to the 9th Circuit, on March 7, 2000. His 2005 explanation of this hypocrisy: "Filibuster, cloture, it gets confusing--as a scheduling or to get more information is legitimate. But not to kill nominees." Pressed again on the Senate floor, he stammered and dodged.

It's Frist who seeks to confuse the matter. As we have pointed out a number of times, throughout the Senate's history there have been judges who were not confirmed, even though they didn't get that supposedly hallowed "up-or-down vote." In the case of Paez, Frist was part of a conservative coalition that sought explicitly to block the nomination by sinking the cloture vote -- the modern definition of the filibuster, and exactly the same tactic Democrats are using today.

But most blocked nominees never even made it to the cloture stage. And once again, we have here the perfect illustration of this not-so-distant past in the form of Senator Orrin Hatch, the moon-faced Mormon, who has done more to block judicial nominations in the service of his party than any other living man.

In the early 1990s, when Hatch was ranking member of the Judiciary Committee, he made extensive use of committee rules such as the blue slip (at least one senator from a nominees state must approve), Rule IV (at least one minority member of the committee -- i.e. Hatch -- must approve), and anonymous holds to block Clinton's nominees. In 1995, when he became chair, he even strengthened the blue-slip rule, requiring both home-state senators' approvals.

And of course, when worse came to worse, he was an advocate of the filibuster. During the 1994 Republican filibuster of Clinton nominee Lee Sarokin, Hatch called the filibuster "one of the few tools that the minority has to protect itself and those the minority represents."

According to Arlen Specter, the current Republican Judiciary chair,

Through blue slips and holds, seventy of President Clinton's nominees were blocked. When it became clear that the Republican-controlled Senate would not allow the nominations to move forward, President Clinton withdrew 12 of those nominations and chose not to renominate 16.

But by 2003, with Bush president, Hatch took a different stance. Rule IV, blue slips, and other holds were practically eliminated so that the Republicans' nominees could be ushered through.

Hatch, who almost single-handedly blocked 70 Clinton nominees in an effort to simply wait for a Republican president, is now claiming that blocking just 10 is unprecedented. That's an unbelievable amount of mental flexibility, even for a politician.

But there's even more that we should remember as we approach the main event, the Rehnquist seat.

The Constitution speaks of the president obtaining the Senate's "advice and consent." Consent is usually granted, although in a few extraordinary cases like those being filibustered, it is denied. But what about advice? The filibuster compromise deal reads, "We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration."

Here's what not to do:

Before Ronald Reagan nominated Robert Bork to the Supreme Court, Reagan reportedly showed an influential Democratic Senator a list of five possible nominees. The senator, pointing to Bork's name, said, "All of them are acceptable except this one." Reagan nominated Bork anyway, and of course the Senate ultimately rejected him. (David Strauss, 6/23/94)

At the time, Reagan faced a Democratic Senate -- which had already unanimously approved Antonin Scalia -- and his most extreme possible selection was rejected, like about 20% of all Supreme Court nominees in history.

When it came time for Clinton to fill seats in the high court, he also had a Democratic Senate, but he sought to avoid a rough confirmation fight. Instead, the president approached the minority judiciary leader, Senator Hatch, and asked for advice.

As he has claimed on C-SPAN and in his autobiography "Square Peg," Hatch himself recommended Ruth Bader Ginsberg and Stephen Breyer, who were ultimately confirmed.

This is all recent history, and as we see, many of the same players are involved. Now, they claim that Ginsberg and Breyer -- the only two justices on the high court appointed by a Democrat -- are orchestrating some kind of "liberal activist" revolution in the judiciary, and that only an absolutist drive to confirm extremist judges can stop them.

In truth, the "confirmation machine" in the Republican Senate today is unprecedented, and their specially-selected nominees are the revolutionaries. While Bush has made motions to "consult" on his next Supreme Court nominee, we have to wonder how sincere he can be, when his leadership cadre is calling for more and more drastic measures:

If 51 senators can't be mustered to kill filibusters against judicial nominations, there's no hope of finding 67 votes to convict and remove judges who've been impeached or to propose constitutional amendments to limit judicial activism on a systemic basis. (Mark Levin, "Call them the sellout seven," Human Events, 5/27/05)