E-Mail This Article to a Friend Justice under fire (continued)

AFTER THE broadcast ended (with a country singer named John Conlee paying tribute to military families; Johnny Cash he wasn’t), Pastor Bezanson and I sat for a few moments in a front-row pew, talking about how he and his church got involved in broadcasting such an event. Congregationalists are generally thought of as liberal on both religion and politics. But Bezanson explained that his church, which has about 120 members, is affiliated with a more-traditional organization called the Conservative Congregational Christian Conference, and that he himself was trained as a Southern Baptist preacher.

A friendly, bespectacled man with the name of his church sewn over the pocket of his dark shirt, Bezanson was instantly likable — and crystal clear in expressing his conservative beliefs. He noted that New Hampshire is the home of Bishop Eugene Robinson, chosen by the Episcopal Church as the first gay man to hold such a position. "We believe it’s just an abomination," Bezanson said. "It’s a direct conflict to scripture." Moments later, he added, "We believe the scriptures are the entire word of God."

Bezanson is obviously no demon. So I found it interesting that he didn’t hesitate to criticize another denomination’s choice with respect to homosexuality. It’s a dichotomy that I think is useful to keep in mind when thinking about Justice Sunday, which is just a small part of a broader campaign to move the judiciary sharply to the right. Liberals and progressives are forever making the mistake of thinking they can win over the other side, and are thus forever frittering away whatever small advantage they have by compromising with the right, making deals, and giving up on some of their principles in the hopes of obtaining concessions somewhere down the line. Statements such as Bezanson’s are a useful reminder: the religious right aims to win, period.

In that respect, the Democrats are acting with admirable strength on the judicial nominees. As has been reported on numerous occasions, Congress has approved more than 200 of President Bush’s judicial nominees, but has held up 10 of his most extreme choices through the use of the filibuster. As anyone who has seen Mr. Smith Goes to Washington knows, the filibuster allows senators to delay a vote indefinitely as long as members are speaking. It takes 60 votes to halt a filibuster. There are 55 Republicans in the Senate. Ergo, Bush and the Republicans — not to mention James Dobson, Tony Perkins, and David Bezanson — can’t have everyone they might like ascend to the federal bench.

This state of affairs isn’t terribly different from what happened when Bill Clinton was president. The Senate was controlled by the Republicans for the entire eight years of Clinton’s presidency, so the filibuster wasn’t needed to squash his nominees. Instead, those nominees whom the Republicans found to be the most objectionable were shot down in committee. As with the current situation, the nominees were denied the opportunity to be voted on by the full Senate. Yet there was no talk of a constitutional crisis, as there is with Bush’s nominees.

The reason all this has reached such a fever pitch is that the judiciary represents the last bastion of government that the radical right wing of the Republican Party does not yet control. Keep in mind how extreme the Republicans have become. As columnist Frank Rich noted in Sunday’s New York Times, 10 of the 13 federal circuit courts of appeal are controlled by Republicans. Seven of the nine Supreme Court justices were named by Republican presidents. Yet right-wingers such as Frist and House majority leader Tom DeLay inveigh against the courts as though they were an atheistic outpost of left-wing lunacy, entirely impervious to the democratic process. In fact, the courts have given the Republicans much over the years — including the presidency itself, which occurred in 2000, when the Supreme Court stepped in and halted a recount of the Florida ballots that had been ordered by that state’s highest court.

The "nuclear option" — dubbed the "constitutional option" by those who favor it — would eliminate the filibuster for judicial nominees, thus guaranteeing a vote by the full Senate. Proponents argue that filibustering judicial nominees is actually a violation of the Constitution’s "advise and consent" clause — that the framers of the Constitution never intended to let a minority of senators overrule the wishes of the majority. But this charge is obviously spurious. That’s because the Senate itself has the power to make its own rules, and the filibuster is among those rules. The Senate could do away with it tomorrow if it chose; and if it chooses to retain it, that’s hardly unconstitutional. The whole point of the filibuster is to stop one side from running roughshod over the other. Yes, it’s been used for evil, such as delaying civil-rights legislation. But the point is, the filibuster guarantees that in a closely divided Senate (reflecting a closely divided nation), the president will be forced to choose judicial nominees who appeal to a broad ideological cross-section. Moderate and traditional conservatives would pass — indeed, have been passing — with bipartisan approval. But if the president truly wishes to appoint judges who would overturn Roe v. Wade, then the first thing he needs are 60 senators who would shut down debate and approve such nominees.

It was actually James Dobson himself who put his finger on the problem Sunday evening, blaming the Senate’s inability to get rid of the judicial filibuster on "the Democrats, essentially, and six or eight very squishy Republicans." Well, now. There are 44 Democrats in the Senate, plus one independent (Vermont’s Jim Jeffords) who votes with them. Give them six or eight Republicans, and that means there are somewhere between 51 and 53 senators — an outright majority — who oppose doing away with the judicial filibuster, assuming Dobson’s arithmetic is right. If Frist and Cheney really intend to eliminate the filibuster despite the opposition of an absolute majority of senators, it’s hard to see how the Democrats can be credibly accused of undermining the will of the Senate.

Not that that’s going to stop Frist from mouthing the pap that came out of his mouth last Sunday, like, "That is a senator’s job: to vote." Actually, a senator’s job is to represent his or her constituents’ best interests and to stand up for certain principles. Sometimes that requires stopping a vote, by any legitimate means available.