Bush’s Brave New Judiciary:

Post Nuclear Option America Could be Scary

by Michael I. Niman, ArtVoice 6/2/05

Our corporate media phrase for the month is “Nuclear Option,” referring to the Senate battle over Democrats’ rights to block voting on judicial nominations by filibuster. But like most media buzz, the phrase is devoid of context. Yeah, we all got the play-by-play fight over the filibuster. But the whole story is being framed as a sort of Democrat vs. Republican volleyball game. Missing is any reason why the normally lickspittle crew of senate Democrats would suddenly come to life and want to block any of Bush’s judicial nominations.

Bum-Rushing the Senate

The numbers here are telling. In his first term occupying the White House, Bush nominated 214 judicial candidates to the bench for lifetime appointments. Despite what arguably is Bush’s lack of legitimacy to make any judicial appointments, since he himself only seized power by judicial fiat, the Democrats obsequiously acquiesced to 204 of them, using the filibuster to block only ten nominations. These ten blocked nominations account for less than five percent of Bush’s nominees. By comparison, obstructionist Senate Republicans blocked 35 percent of Clinton’s judicial nominees.

Bush’s arrogance knows no bounds, and like any tin cup dictator, he demands 100 percent compliance. Hence, he’s sending most of his rejected judicial nominations back to the Senate, this time for a proposed “nuclear” filibuster free bum-rush of a confirmation – Senate decorum be damned. So let’s look at these nominees that are so odious that even the Senate’s most notorious Democratic invertebrates found the backbone to stand up against them.

First, there’s nominee William Pryor, who filed a brief with the Supreme Court arguing that homosexuals should be jailed for engaging in consensual sex, anywhere, anytime, including in the privacy of their own bedrooms. He argued that statutes prohibiting gender discrimination of all forms in public education are “antidemocratic,” ostensibly because they deny the majority the right to lord over the minority. Toward this end, he also argued that states should have the right, by simple majority vote, to outlaw gay rights, abortion, and so on, regardless of the constitution. As a federal judge, this Alabaman will have the ability not only to argue these anti-American points – he’ll be the arbiter who oxymoronically declares them constitutional. Oh yeah, he also believes that handcuffing American prisoners to posts in the summer sun is a legal and appropriate form of incarceration. And every damn Republican in the Senate believes he should be a Federal Judge for life.

The New First Amendment

Nominee Janice Brown believes Social Security is a “socialist revolution,” sort of like the Bolshevik storming of the Russian Winter Palace I guess. Brown argued that racist speech as a legally recognized form of harassment in the workplace, such as a white boss telling a black worker to “work faster nigger,” is protected under the First Amendment. She also argues that corporations have a legal right under the First Amendment to lie. Rent control regulations and laws protecting low income access to housing, she argues, constitute theft of private property. Let’s hear it for homelessness.

Pricilla Owen, another Bush nominee, has issued rulings making it difficult to fight against workplace racial and sexual discrimination and has argued that environmental regulations should not apply to private property when such regulations interfere with a property owner’s land use planning. Maybe you were planning to fertilize your garden with toxic sludge? Owen has already been nominated, as fallout from “the deal” to avert Bush’s “nuclear option.” Way to go “centrists!”

One Bush nominee for the federal bench never served as a judge – William Myers served as a lobbyist for the mining and cattle industries for a dozen years before Bush appointed him as Chief Legal Advocate for the Interior Department. The Interior Department is supposed to regulate, yep, mining and cattle ranching on our federal lands. In this role Myers predictably served his former corporate masters by dealing our lands away to Republican campaign donors. Another nominee with no experience on the bench is William Hayes. As counsel to the Defense Department, he defended the Bush administration’s unlawful detention without charge or trial of so-called “enemy combatants.” With Hayes on the bench, we all could be termed “enemy combatants.”

Nominees Terrence Boyle and David McKeague have had their rulings overturned by higher courts. Boyle was twice slapped down for allowing redistricting of congressional districts in order to disenfranchise black voters. McKeague was admonished for making “arbitrary and capricious” rulings allowing logging corporations to be exempted from environmental regulations. As federal judges, both men will have the ability to now admonish other judges for not issuing arbitrary and capricious rulings.

Outlawing the Solstice

Still confused on why judicial nominations are so important? Let’s look at the recent case of a Republican judge in Indiana, Cale Bradford, who issued an order to the parents of a nine-year-old boy telling them that they could not practice their religion with their son. The judge came into the picture as part of a divorce proceeding, but without the request or consent of either parent, forbid the parents, both of whom are Wiccan, exposing their son to “non-mainstream religious beliefs and rituals.” The judge didn’t define “mainstream,” but we must assume he didn’t mean to include Wicca, which adherents argue is the world’s oldest religion.

Both divorced parents are now united in the fight for their son’s constitutional rights. Thomas Jones, the boy’s father, and organizer of Indianapolis’ Pagan Pride celebration, explains that “it is upsetting to our son that he cannot celebrate holidays with us, including Yule, which is winter solstice, and Ostara, which is spring equinox.” The parents argue that the judge never explained why he thought practicing Wicca would harm the boy. Organizations ranging from the U.S. Military to the New York Transit Authority employ Wiccan clergy without discrimination. Bradford’s wacky ruling will no doubt be struck down as unconstitutional – and the boy will once again be able to celebrate the solstice. With a constitutionally illiterate or theologically arrogant Bush nominee on the federal bench, however, this hateful ruling would stand.

Drafting Narcs

There’s more Republican judicial mischief in the works that the media is also ignoring. House Judiciary Committee Chair, Republican James Sensenbrenner of Wisconsin, is pushing through a bill (H.R. 1528) that would require Americans to turn in their family, friends and neighbors if they suspect they might have violated any law relating to illicit drugs. Failure to do so will result in a mandatory jail term of at least two and as many as ten years.

It works like this. You’re looking for a crock pot in your sister’s kitchen and you stumble on a bong in her cupboard . Or you go down to the basement to get a hammer and stumble on your father’s stash. Or you’re doing your kid’s laundry and find a joint in his sock drawer. In any of these cases, the proposed law would require you to call the police within 24 hours of making the discovery. How’s that for family values? Don’t take my word for this – check this bill out yourself.

The deal’s the same if you smell marijuana smoke lofting from your neighbor’s window, suspect there’s too much traffic through another neighbor’s home, or see the kid down the block acting “suspicious.” You have to not only call the cops, but also provide “full assistance in the apprehension and prosecution” of the people you blow in, whatever this entails. It’s sort of like a universal narc draft. If you see your drunken neighbor beating his wife, however, you can still just go in the house and watch American Idol re-runs without any need to wear a wire or videotape the crime.

Am I Making Myself Clear?

Lately I’ve been penning quite a few rants about Republicans. All of these attacks are earning me a reputation among detractors as a sort of anti-Republican partisan – as if I was party to some pissant pony race between Republicans and Democrats. Get it straight. This is much bigger than the trite contest the media makes it out to be. The very soul of our country and the future of our fragile democracy and human rights are at stake here. It’s not that I hate Republicans. It’s that I love my country. There’s a difference. This is not your parents’ Republican Party. It’s not simply about two teams competing for patronage. This is a bona fide fascist movement. Am I making myself clear?

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