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September 26, 2002
The Right Judge?
By BOB HERBERT
The public pays very little attention to the comings and goings of the federal appeals courts.
The Senate confirmation fights over one nominee or another — like the recent battles over Charles Pickering and Priscilla Owen, both of whom were rejected — are not big news for the majority of Americans. People are much more interested in the possibility of war with Iraq, or even the videotape of the woman caught hitting her daughter in a parking lot in Indiana.
But the appeals courts, divided into 13 regional circuits, are crucial arbiters and shapers of the American way of life. How easy or difficult will it be for a woman to get an abortion? How safe can we make the food supply? What happens at the many intersections of the environment and commerce? What's up with civil rights and civil liberties?
Whoever controls the appeals courts has tremendous say over whose values will prevail in the United States. And no one has a deeper understanding of that than America's right-wing conservatives.
The Senate Judiciary Committee is considering two more of President Bush's appeals court nominees — Michael McConnell to the 10th Circuit, based in Denver, and Miguel Estrada to the Court of Appeals for the District of Columbia Circuit.
Mr. McConnell, a law professor, has been a passionate opponent of abortion and has asserted that Roe v. Wade was wrongly decided and should be overturned. He has described abortion as "evil" and has suggested that embryos should be given constitutional protection.
(His nomination has apparently softened his stance, however, at least publicly. He recently told Judiciary Committee members that he now views Roe as settled law, and therefore his personal views are irrelevant. Pro-choice advocates are understandably skeptical.)
Mr. McConnell also opposed the landmark Supreme Court decision in the Bob Jones University case. That ruling held that private schools practicing racial discrimination could not receive federal tax exemptions.
Professor McConnell, who is widely respected for his scholarship, has also argued that the separation of church and state, a concept viewed as fundamental by millions of Americans, has been pushed too far. He would open the door for what he describes as more "religious freedom" in public schools and for more direct government aid for religious organizations.
Meanwhile, at a hearing scheduled for today, the Judiciary Committee will take up the nomination of Mr. Estrada, a 40-year-old lawyer who is a darling of the conservative right and also is admired for his intellect. Unlike Professor McConnell, however, Mr. Estrada has not left a significant paper trail and it will be difficult for Democrats to portray him as a right-wing ideologue.
Liberal advocacy groups have been left in a state of high anxiety by these two nominations. There seems little doubt that both men are prepared to advance the values of the right, if not the extreme right. But they are very difficult to fight. Mr. Estrada is an attractive nominee who could become the first Hispanic appointee to the Supreme Court. (A subtler, brighter Clarence Thomas?)
And Professor McConnell, who could well be President Bush's second appointment to the Supreme Court (it's assumed the first pick will be Hispanic), may benefit from the sheer fatigue of Senate Democrats having to fend off one nomination after another.
But even if neither man makes it to the Supreme Court, it's important that both nominations be looked at closely. The political right has been relentless in its campaign to control the federal courts, and that campaign is getting awfully close to an absolute victory. Seven of the 13 circuit courts are already controlled by Republican appointees, and it is possible that within two years that control will extend to as many as 12, and maybe all 13 circuits.
In the popular imagination, the Supreme Court is the court of last resort. But in any given year, the Supreme Court decides fewer than 100 cases. The circuit courts, on the other hand, will issue rulings on 28,000 to 30,000 cases each year.
For those who are concerned about reproductive rights, civil liberties, health and safety issues, the environment, and on and on — it might be a good idea to pay much closer attention to the continuing takeover of the federal courts by the right.
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