The candor of judicial obstruction -- Straight from a significant source
By Marion Edwyn Harrison
Hugh Hewitt, of the Hugh Hewitt Show, aired Monday -- Friday 6:00 PM to 9:00 PM EDST (the website of which, www.smonline.com, contains local listings), recently interviewed Ms. Nan Aron, who runs the National Alliance for Justice, which she founded in 1979 after a relatively short legal career devoted to liberal causes. In a perhaps perverse sort of way, it may be re-assuring to know that the liberal United States Senators who are filibustering the Bush Federal Judiciary nominees they could not defeat by reasoned argument or majority vote are playing to an overt constituency of the professional left.
The following transcript is edited, to delete repetition as well as insubstantial Q & A and/or comment. No meaning is changed. What you read, unfortunately, reflects the full measure of what was said.
Hewitt: " . . . the Alliance for Justice? . . ."
Aron: " . . . a national organization of over 70 public interest and civil rights advocacy organizations . . . [with] two different programs. One focuses on issues affecting the composition of the Federal Judiciary and access to justice and [the] other . . . provides technical assistance [etc.] to non-profits and foundations . . . on . . . IRS and FEC rules.
" . . . We have about 40 staff members here and our budget is something between 4-5 million dollars a year . . .
Hewitt: " . . . along with Ralph [Neas] you are perhaps the most identified with the effort to block President Bush's nominees to the Circuit Court of Appeals . . .
Aron: " . . . The problem with George Bush's candidates [sic] to the Court of Appeals is that they are either [sic] individuals who would turn the clock back on our environmental and worker protections, on our civil rights and women's rights . . . people who will [sic] take us backwards . . .
Hewitt: "Let's talk about the unprecedented use of the filibuster against Court of Appeals judges [sic]. Prior to 2003 a vote to invoke cloture had never failed with regards [sic] to a Circuit Court judge [sic]. Never. Not in the 217-year history of the United States Senate. Democrats have successfully blocked 20 such votes in the last 3 years. Isn't that radical and . . . unprecedented?"
[More Q & A follows. Anon cites no filibuster against a Circuit Court nominee. Note she terms them "candidates," not "nominees," as though some popular election rather than the Constitutionally mandated process of advice and consent were applicable. Anon cites only the filibuster against the late Abe Fortas, then a Supreme Court Justice, nominated for Chief Justice by his former client, President Lyndon Baines Johnson, which concluded when the President withdrew the nomination and the Justice resigned from the Court, following insurmountable financial-scandal disclosures.]
[Q & A follows on certain specific nominations.]
Hewitt: "Do you really believe in what you're saying right now – that no one knew William Pryor was Catholic?"
[Q & A as to Pryor's alleged bad record: Pryor believes Roe v Wade was poorly decided; Pryor co-founded the Republican Attorney Generals Association; "while Attorney General [of Alabama] he made every effort to limit congressional authority to past civil rights, worker rights and environmental laws . . ." Imagine, Aron wants a State Attorney General to attempt to expand Federal law! (Bye, bye, Federalism.) Then Q & A as to William Haynes' alleged bad record: Haynes " . . . wrote a memo – he was first . . ." and (impliedly) led an effort to deprive terrorist detainees of alleged rights.]
[Then Q & A about filibusters. Aron favors them if necessary to block confirmation. Names a number of nominees, former nominees and possible nominees against whose confirmation she would favor a filibuster but names none against whose confirmation she would permit a majority vote. Frequent mention of Roe v Wade; no mention of any other case.]
Hewitt: "Is that what it comes down to, just Roe v Wade in your eyes? It's really an abortion litmus test, isn't it?
Aron: "No, no, no. It's not just abortion. It's environment, it's civil rights, it's consumer and worker protections . . . someone's entire record, not just a record on one or two issues.
Hewitt: "Can people be religious and not be opposed by the Alliance for Justice?
Aron: "Of course they can . . .
Hewitt: " . . . [C]an you name any such person whom you know to be devout Roman Catholic . . . whose confirmation . . . you've supported?
[Q & A, with no specificity, until Aron alleges that the "Family Research Council, Christian Coalition . . . don't respect the wall of separation between church and state. They . . . have pretty firm ideas on abortion, school prayer, church/state separation and . . . the Alliance for Justice holds views at variance . . . ."]
Hewitt: "Are they out of the mainstream, Nan Aron? . . .
Aron: " . . . Sure, I think they are out of the mainstream. Most people in America support, are perfectly comfortable allowing the right to choose with women . . .
Hewitt: "Is it radically religious right to believe in halting partial-birth abortion?
Aron: "I'm not actually sure. I assume it is . . ."
[Q & A on a nominee's ability to separate his religious views from his jurisprudence. Aron initially can cite only one nominee who allegedly can't do so; then, after considerable further Q & A, cites two more. As throughout the dialogue, Aron cites no adjudicated case other than Roe v Wade and no federal statute, rule or regulation. Two other nominees are said, with no specificity, to be too activist but "anti-choice" (translate: "pro-abortion") again looms large. In due course the colloquy returns to the filibuster/cloture issue.]
Hewitt: "And it does come down . . . that you are opposed to majority rules in the Senate when it comes to judges?"
Aron: " . . . I'm just saying that the Senate is the last line of defense to George Bush's court-packing [sic].
Hewitt: "But you are opposed to majority rule in the Senate when it comes to judges?
. . .
Hewitt: "But you think that . . . 41 Senators . . . should be able to block any judicial nominee . . .?
Aron: "Sure. I certainly do . . ."
[Superficial Q & A about the Federalist Papers , then various Aron claims about Republican Senators' allegedly "holding up" Clinton nominees but no claim about GOP Senators' "blocking" Clinton nominees. The program substantively concludes with a grossly inaccurate and misleading percentage-of-confirmation claim.]
Aron: " . . . I don't know you can call [Democratic filibustering Senators] radical when they've confirmed 95 per cent of the Bush judges [sic]. . . . That's not radical . . ."
Editorial comment: In fact, contrary to leftist obstructionist propaganda, the Senate through March 28, 2005 has confirmed 18 of 34 Circuit Court nominees – 53 per cent, not 95 per cent. Further, even if one includes District Court nominees the figures are 105 of 131 – 80 per cent, not 95 per cent, And there are 10 of 13 Federal Circuits which are in an officially certified "Judicial Emergency" status. The filibusters, not surprisingly, are against appellate-level nominees, not against trial-level nominees. The long and short of the Alliance for Justice position, rather inarticulately and nonspecifically exemplified by this transcript, is that the Left will support a filibuster against any federal appellate nominee whom it considers pro-life or too Christian (Catholic or Protestant). Certain Senators already have made clear their anti-Catholic position. See, e.g., Is There Now a Religious Test for the Federal Bench? (March 2, 2004).
Marion Edwyn Harrison, Esq., is President of, and Counsel to, the Free Congress Foundation.
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