Loss of liberty more evident than ever

By Thomas L. Jipping
web posted July 31, 2000

You get more of what you subsidize and less of what you tax, more of what you encourage and more of what you discourage. As the embarrassment and loss of liberty, that are Bill Clinton's real legacy, come mercifully to an end, America is witnessing that this maxim is true in politics as it is in life.

Mr. Clinton has proven this especially true in the appointment of federal judges. He has appointed 360 judges so far, more than 45 per cent of all those in full-time service and just 18 shy of Ronald Reagan's appointment record. Republicans have confirmed two-thirds of these, handing Mr. Clinton a 231-1 appointment run since they supposedly took control of the Senate.

Here's how Clinton did it. In 1993 and 1994, with his Democrats in charge, Clinton pushed through an enormous number of judges, pushing the judicial envelope with many of them. After Republicans became the Senate majority, he backed off a bit, offering somewhat more moderate nominees while testing the mettle of the new congressional leaders. His victory in the government shutdown showdown revealed something very important. Republicans' lack of resolve, lack of principle, and fear of practically everything should be exploited, manipulated, and used to Clinton's advantage.

He has used this to highjack the courts in two ways. First, Democrats have forced the Republican Senate to confirm more, and more radical, nominees by threatening to hold up or veto appropriations bills. This tactic worked in 1998 - a few weeks before the election, Majority Leader Trent Lott confirmed 17 judges in exchange for Clinton's signature on an omnibus-spending bill. Last year, Lott caved in an agreed to a vote on two radical appeals court nominees when Clinton nominated a friend of Lott's to a government agency. In February, Lott turned his back on his fellow Republicans' effort to block Clinton nominees after Clinton nominated Bradley Smith, Lott's choice, to the Federal Election Commission. A few months later, Lott confirmed 16 judges in exchange for Mr. Smith's confirmation. Now Senate Democrats are again threatening to hold appropriations bills hostage in exchange for a judicial confirmation ransom. Lott will cave again.

Clinton is also exploiting Republican weakness in another, even more offensive, way. It seems Republicans will do anything, absolutely anything, to avoid being called racists. On July 13, in a speech before the NAACP convention in Baltimore, Clinton accused Senate Republicans of refusing to confirm certain judicial nominees because of their race. Lott's response on Fox News Sunday was to pledge to confirm a black woman to the U.S. Court of Appeals for the Ninth Circuit, already the most radical court in the country.

The issue is not a nominee's race, but what kind of judge a nominee will be. Clinton knows he cannot win that battle, but he also knows that Republicans will not force him to fight it. They will instead let him change the subject and shift the debate to race. He wants Republicans to use a racial double-standard to confirm radical minority nominees who would not have a chance if they were white. And Clinton primes the confirmation pump by deliberately choosing minorities as his most radical nominees.

Denying, rather than denouncing, a false accusation never works. Never. Yet Republicans cower in the corner, whine that they are not really racists after all, and then in the end do Clinton's bidding. When the GOP took Senate control, they had the chance to do it right. Instead, they did it wrong. And now, their lack of resolve, lack of principle, and fear of being called names has worked in Clinton's favor.

Tom Jipping is the director of the Center for Law and Democracy at the Free Congress Foundation.

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