FauxPolitik

Friday, March 28, 2003

Back to The Senate: Priscilla Owen returns to face a potential filibuster. As I said recently, I'm not sure what the Dems hope to accomplish by filibustering judicial nominees this way. Owen, Pickering, and Estrada are being blocked as though they are Supreme Court nominees and ideological Scalia-clones. (All have received the imprimatur of the ABA, which has never been friendly to conservative ideologues.) Again, I don't denigrate partisanship as a motivation -- and partisanship it clearly is, as displayed in the hysterics of New York's Chuck Schumer, who said that the nomination of Pickering was an assault on "basic civil rights." In fact, on his web site, Schumer publishes his manifesto on ideological challenges to judiciary nominees, based on a Senate hearing on the subject. Said Schumer:
Having one or even two Justices like Scalia and Thomas [on the Supreme Court] might be legitimate because it provides the Court with a particular view of constitutional jurisprudence. But having four or five or nine Justices like them would skew the Court, veering it far from the core values most Americans believe in.
Interestingly, Eugene Volokh testified at that hearing. Volokh:
The chief point I’d like to make today is that the Supreme Court’s recent jurisprudence, including the views of the Court’s more conservative members, has been firmly within the mainstream of American constitutional thought. One may agree or disagree with this jurisprudence, but one has to acknowledge that it’s entirely mainstream.
It's a great window into the Dems' strategy as formulated by Schumer. Be prepared to hear this argument against any Bush nominee: he or she is just not in the judicial "mainstream." That's fine. As I said, partisanship is an acceptable political strategy, though not without its risks.

But look, too, for the kind of subtle smearing Hentoff takes apart here. Schumer's attempt to pin the crypto-racist label on anyone outside the "mainstream" (as Schumer sees it) is the quieter, more sinister part of the strategy. That's the part that risks the backlash.

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