The National Catholic Review

On the afternoon of May 22, 1856, Congressman Preston S. Brooks of South Carolina barged into the Senate chamber and used his walking stick to beat into insensibility Senator Charles Sumner of Massachusetts. Two days earlier, Sumner had given a fiery antislavery speech that Brooks claimed had libeled South Carolina.

 

Although that was the most violent episode in Congressional history, there have been plenty of other nasty moments. There could easily be an annual citation, called the Brooks Award, for the year’s outstanding example of bad behavior in Congress.

If there were such an award it might be given collectively for 2003 to the nine Democrats who are the minority on the Senate Judiciary Committee. For more than a year, they blocked President Bush’s nomination of Miguel A. Estrada for the influential U.S. Court of Appeals for the District of Columbia Circuit by threatening a filibuster if the nomination ever reached the Senate floor.

The 41-year-old Mr. Estrada emigrated from Honduras when he was 17, graduated with honors from Columbia College and Harvard Law School and has served with distinction in the U.S. Solicitor’s office. When he was nominated in September 2002, The Washington Post noted editorially: “There is no sound basis on which to oppose him.... Mr. Estrada must be considered on his merits.”

But he was not. He assured the committee at his hearing that he recognizes that Roe v. Wade, as refined by the 1992 Casey decision, is the law and said he would follow it if he were confirmed. All the same, because he is known to be opposed to abortion the filibuster threat prevailed; and last September Mr. Estrada asked that his nomination be withdrawn.

Whatever possessed the nine Democrats to such a flourishing of figurative walking sticks? Politics, in the first place. The Democrats on the committee cultivate pro-choice groups so relentlessly that they would not have approved Solon if they suspected he were pro-life.

New York’s Senator Charles E. Schumer, the minority’s most vocal crosspatch, tries to put his obduracy into a highminded context. He would bar from judicial appointments anyone he suspects of being what he calls a “conservative ideologue”—which means anyone whose general philosophy is not the same as his own.

The courts would be weakened, however, if every judge had to be stamped from a liberal mold. Some conservative judicial salt can be useful, as the case of Virginia v. Black, decided by the U.S. Supreme Court last April, showed.

That case dealt with a law passed in Virginia in 1952, when the Ku Klux Klan was burning crosses as a symbol of its hostility toward minorities. The law banned cross-burning when it was done to intimidate others, and a section added in 1968 allowed jurors to infer the aim of intimidating from the fact of burning the cross.

In 1998 there were two incidents of cross-burning, but in 2001 the Virginia State Supreme Court overturned the convictions of three men involved in these incidents on the grounds that the cross-burning ban violated the right of free speech guaranteed by the First Amendment.

That judgment was appealed, and on April 7 the U.S. Supreme Court handed down a bundle of opinions as complicated as a Rubik’s cube. Three justices rejected the cross-burning ban completely as constitutionally offensive. Four others, for whom Justice Sandra Day O’Connor wrote a plurality opinion, thought states should be able to restrict cross-burning but that Virginia had gone too far in assuming that cross-burning is itself proof of an intention to intimidate.

Justice Clarence Thomas, whose views usually displease liberals, demolished this thicket of distinctions and upheld the Virginia law in its entirety. Cross-burning has no purpose, he said, but to terrorize part of the population, so “not making a connection between cross-burning and intimidation would be irrational.”

That was the voice of a good sense that ought to be common in courts.

John W. Donohue, S.J., is an associate editor of America.

Comments

Stephen J. Murphy, III | 1/7/2004 - 12:39pm
Father Donohue's column was not only well written, it was also very well reasoned. The entire Democratic effort to obstruct the confirmation of judicial nominees with the filibuster process has, as Donohue notes, caused great damage to the judiciary, but it has substantially weakened the Senate as an institution as well. Use of the process to effectively require a sixty percent supermajority for the confirmation of judges, who by rule and tradition really only need fifty one votes to be confirmed, should give pause to any citizen who might foresee tragic abuses of this process. The resulting diminution of our civil rights in high stakes areas wherein Senators in a minority party may repeatedly play the "poor loser" (terrorism legislation and voting rights immediately come to mind) should cause all Americans who care about their government to call on the Democrats to knock it off -- immediately.

With regard to Miguel Estrada, Father Donohue may have also noted, but did not, that Miguel is a former federal prosecutor in New York, that he is often appointed as amicus curiae (friend of the court) by the United States Supreme Court to argue cases of import to the public and that he donates a significant portion of his valuable time to pro bono publico activities. Beyond being highly qualified for a judicial position, Mr. Estrada defines what a public citizen lawyer is and should be. The Democratic opposition to him is shameful and demonstrates precisely that the party is mostly interested in racial and ethnic diversity as long as the diverse think and believe what their leaders want them to.

Rick Fueyo | 1/6/2004 - 6:04pm
Your support for Miguel Estrada’s nomination to be circuit judge on the DC Circuit is misguided, and your equation of the threatened filibuster to the actions of “Bully” Brooks is irresponsible rhetorical excess. Estrada holds Pro-Life views, and the Senate Democrats uniformly oppose such views, to their shame. But over 160 Bush nominees with similar views have been confirmed.

What sets Estrada apart is his history as an ideological operative, well known to those on Capitol Hill. Estrada has long cast common cause with Solicitor General Ted Olson, perhaps the most bellicose and divisive figure in today’s coarse political climate. Again and again he has proven himself to serve the cause by doing what is necessary, including being “placed” on Justice Kennedy’s staff to ensure ideological orthodoxy by all means necessary.

We can debate the morality of such operatives – certainly they are not unknown in history, and populate both sides of the aisle. But their place is in the political arena, not the judiciary. Estrada has too much political “blood” on his hands to merit the honorific of being a judge on the DC Circuit.

Moreover, his “slot” was preserved from being filled by Clinton appointees by underhanded tactics that have not been forgotten, nor should they. Forgiveness is a Christian virtue, but it is rarely observed in politics, and the responsibility to practice it should not be placed upon only one of the combatants. Mr. Olson was confirmed at Mr. Daschle’s direction despite his sordid past as a show of good faith. That olive branch has been returned as a club, repeatedly. The confirmation of Mr. Estrada would be just another victory for such tactics, to the detriment of our Republic

Leo J. Jordan, Esq. | 2/7/2007 - 4:59pm
It appears obvious that John W. Donohue, S.J., (Of Many Things, 1/5) missed the fundamental reason for the refusal of Senate Democrats to allow the confirmation of Miguel A. Estrada to the U.S. Court of Appeals for the District of Columbia. The D.C. court is one of the most important courts in the country and is often a stepping stone for Supreme Court appointments. Estrada’s slim record shows him to be an extreme conservative, some say an ideologue. Yet the White House refused to release information on Estrada that would provide the Senate with adequate information necessary for its advice-and-consent responsibility.

His appointment was opposed by the Congressional Black Caucus, the Congressional Hispanic Caucus, as well as the Puerto Rican Legal Defense Fund, and the Mexican American Legal Defense and Education Fund. President George W. Bush was catering to Hispanic voters in much the same way as his father, former President Bush, did when he sought to replace Justice Thurgood Marshall with Justice Clarence Thomas.

Stephen J. Murphy, III | 1/7/2004 - 12:39pm
Father Donohue's column was not only well written, it was also very well reasoned. The entire Democratic effort to obstruct the confirmation of judicial nominees with the filibuster process has, as Donohue notes, caused great damage to the judiciary, but it has substantially weakened the Senate as an institution as well. Use of the process to effectively require a sixty percent supermajority for the confirmation of judges, who by rule and tradition really only need fifty one votes to be confirmed, should give pause to any citizen who might foresee tragic abuses of this process. The resulting diminution of our civil rights in high stakes areas wherein Senators in a minority party may repeatedly play the "poor loser" (terrorism legislation and voting rights immediately come to mind) should cause all Americans who care about their government to call on the Democrats to knock it off -- immediately.

With regard to Miguel Estrada, Father Donohue may have also noted, but did not, that Miguel is a former federal prosecutor in New York, that he is often appointed as amicus curiae (friend of the court) by the United States Supreme Court to argue cases of import to the public and that he donates a significant portion of his valuable time to pro bono publico activities. Beyond being highly qualified for a judicial position, Mr. Estrada defines what a public citizen lawyer is and should be. The Democratic opposition to him is shameful and demonstrates precisely that the party is mostly interested in racial and ethnic diversity as long as the diverse think and believe what their leaders want them to.

Rick Fueyo | 1/6/2004 - 6:04pm
Your support for Miguel Estrada’s nomination to be circuit judge on the DC Circuit is misguided, and your equation of the threatened filibuster to the actions of “Bully” Brooks is irresponsible rhetorical excess. Estrada holds Pro-Life views, and the Senate Democrats uniformly oppose such views, to their shame. But over 160 Bush nominees with similar views have been confirmed.

What sets Estrada apart is his history as an ideological operative, well known to those on Capitol Hill. Estrada has long cast common cause with Solicitor General Ted Olson, perhaps the most bellicose and divisive figure in today’s coarse political climate. Again and again he has proven himself to serve the cause by doing what is necessary, including being “placed” on Justice Kennedy’s staff to ensure ideological orthodoxy by all means necessary.

We can debate the morality of such operatives – certainly they are not unknown in history, and populate both sides of the aisle. But their place is in the political arena, not the judiciary. Estrada has too much political “blood” on his hands to merit the honorific of being a judge on the DC Circuit.

Moreover, his “slot” was preserved from being filled by Clinton appointees by underhanded tactics that have not been forgotten, nor should they. Forgiveness is a Christian virtue, but it is rarely observed in politics, and the responsibility to practice it should not be placed upon only one of the combatants. Mr. Olson was confirmed at Mr. Daschle’s direction despite his sordid past as a show of good faith. That olive branch has been returned as a club, repeatedly. The confirmation of Mr. Estrada would be just another victory for such tactics, to the detriment of our Republic

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