October 01, 2002
Matthew Engel alert

Matthew Engel, The Guardian's corrospondent here in America, is at it again. I'm going to address a number of his points in this anti-Bush diatribe.

Yet by far the most vituperative disputes between White House and Congress of the past year have concerned the appointment of judges. Republicans blame the Democrats for jeopardising the judicial system by holding up appointments; Democrats say the other lot started it under Clinton, when the choices were less provocative. Actually, the arguments probably started in George Washington's administration, but they have rarely been this rancorous.

Okay, I'm with him so far, and he is right about the current level of hostility. However, his analysis becomes less dispassionate:

Supreme court vacancies come up infrequently, but the administration has to fill hundreds of more routine vacancies in other courts. The process is always overtly political. Still, the Bush administration, despite its own flawed mandate and all his pre-election talk of "compassionate conservatism", does seem peculiarly blatant in pushing its own partisans, sometimes extreme ones.

There's that talk about a "flawed mandate" again. Bush received more votes (and a higher percentage of the total vote) than did Clinton in 1992, but I doubt that Engel took issue with Clinton's choices for the courts.

As to the "extremism" of Bush's picks, they are extreme only to those who long for an unbridled expansion of the nanny state, where the government has control over everything except abortion, which must be unquestioningly provided to any teenager who requests it.

Charles Pickering was rejected because of a position paper he wrote in the 1950's explaining how to strengthen Mississippi's segregation laws. Senate President Pro Tem Robert Byrd was donning his white sheet at that time—he was a wizard of the Ku Klux Klan. However, as Byrd is now a good liberal, his past views are irrelevant, while Pickering's doomed Bush's first rejected nominee.

As for Priscilla Owen, I discussed her nomination at great length here, responding to a New York Times hatchet job. I need not repeat myself.

The Democrat-controlled Senate judiciary committee has held up many appointments and thrown out two, voting 10-nine on party lines. At least five more are in doubt. If the Democrats lose their Senate majority in the mid-term elections next month, all these nominations are likely to go through. And the gates will be open for Bush to make the supreme court appointment he wants. Stand by for someone (preferably, for political reasons, a Hispanic someone) combining the qualities of Judges Jeffreys, Roy Bean ("Hang 'em first, try 'em later") and Melford Stevenson.

This is odious. It appears to be a swipe at Miguel Estrada, an eminently qualified Hispanic judge with a great deal of experience, who is a nightmare for the group-identity politics of the Democratic Party. (See Byron York's NRO article for more on Estrada).

The court is already split ideologically. This manifested itself most ignobly in December 2000 when, by an astonishing coincidence, the court's five Republican-leaning judges thought Florida's electoral laws required that George Bush should be declared as president, and the four Democratic-leaning judges thought they did not.

(BZZZZT) Wrong. The court voted 7-2 that the procedures surrounding the recount process were unconstitutional (a violation of "one person, one vote", due to the repeated recounts of certain ballots); the 5-4 decision was whether the recount process should continue, however flawed it might have been.

But the ideological divide exists on a more intellectual plain [sic] too, displayed in the split between two of the judges, Antonin Scalia and Stephen Breyer. Scalia is the leader of the rightwing in the court, a man whose reading of the constitution is rooted firmly in the 18th century. As he says: "The constitution that I interpret and apply is not living but dead."

Scalia's view is that the constitution actually has a fixed meaning, rather than the moving target view that the left holds. That much is plain. (Sorry, I couldn't resist.)

It is not an unfamiliar view in a country of biblical fundamentalists; it is slightly surprising to find the judicial mindset that allowed the US to have first slavery, and then segregation, still at the very heart of government.

Coming from Engel, the swipe against America's religious community is unsurprising. His attempt to link them to slavery, and to tie Scalia to the two, is heavy-handed and misleading. He forgets that the core of the abolition movement was religious groups.

Even Breyer, who talks of purpose and context when interpreting the law, is hardly an out-and-out liberal: he has usually voted to reject appeals against the death penalty, even if he does sound angst-ridden about it.

Since the overwhelming majority of the US public supports the death penalty (including a majority in both major political parties), Breyer's support of the death penalty is in line with the populace whose laws he is to uphold. (Engel is a European elistist, with the typical European elitist sneer towards the whole debate). Breyer is a standard-issue liberal on all other points, however.

In any case, there is no doubt which way this argument is going. Scalia is possibly the next chief justice. If Bush stays in office until 2009, he is going to skew the court so far to the right it would take decades to unravel. Long after the president might have been forgotten, his appointees would be influencing American law.

Skew to the right? Unlikely. The two judges most likely to retire are both Republican appointees—conservative Rehnquist and centrist O'Connor.

As to the last sentence, he must be referring to Earl Warren.

Supreme court judges often thwart the intentions of their political patrons by turning out other than expected. Bush is likely to appoint people whose views will be so far off and up the wall that no mistake will be possible.

The only surprises have been Republican appointees who have been liberal Trojan Horses, such as the aforementioned Earl Warren, Harry Blackmun, and David Souter. Another appointee such as one of those would tip the ideological balance of the Supreme Court. We can't have that, now, can we? </sarcasm>

It could be enough to ensure a continuation of his worldview until Doomsday. It is not just a matter of tattooists in South Carolina. It will show itself in cases about capital punishment, corporate responsibility, gun control, you name it. Watch carefully.

Hey, he left out abortion! If one are going to recite The Litany™, one must include abortion. Besides, Doomsday is a religious concept; next thing you know, Engel will start approvingly quoting Jerry Falwell and Pat Robertson...

posted on October 01, 2002 07:10 PM


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