Our Entire Way of Life is at Stake
by Jesse Jackson
Chicago Sun Times
And now the ''nuclear option.'' Republican Senate Majority Leader Bill Frist vows to blow up the Senate by getting the Republican majority to outlaw any filibuster against President Bush's judicial nominees. Democrats have approved 208 of Bush's 218 nominees, but are blocking 10 as too extreme. That is unacceptable to Frist.
Bush might sensibly have defused the situation in the hope of moving forward on the business of the American people, but instead he threw gasoline on the fire. In a direct insult to his opposition, he renominated the same handful of extremists previously blocked. Now he demands an up-or-down vote on them -- essentially ordering Frist to blow up the Senate. As in the run-up to the war in Iraq, he's intent on winning, with little sense of the costs and consequences of what he's driving the country into.
Outside groups on both sides are mobilizing. The right of the Republican Party has called blocking a handful of Bush's nominees an assault on ''people of faith.'' (The president apparently is so infallible that to question even 10 of more than 200 nominees is to risk eternal damnation.) Liberals have started touting the filibuster as the bedrock of democracy.
But this debate isn't about freedom of religion. And it isn't about the filibuster. It's about the judges and the direction of the country.
Bush's mantra is that he simply wants judges who will follow the law, not legislate their own will from the bench. He wants judicial restraint, not judicial activism. But that is simply nonsense, and the president knows it. Bush isn't nominating conservative judges as his father did; he's nominating radicals, vetted by the right-wing Federalist Society, and dedicated to advancing the movement's agenda through the courts. He's naming judges who will overturn precedents that the conservative movement doesn't like -- from Roe vs. Wade that gave women the right of choice, to Brown vs. Board of Education that outlawed segregation, to the core jurisprudence of the New Deal.
This is central to the right's battle to remake America in its image. Whenever a movement pushes for dramatic social change, it naturally runs up against the status quo bias of the courts. The New Deal movement ran headlong into the free market doctrines that conservative judges had implanted into the Constitution. Those doctrines made labor unions an illegal restraint of trade. They deemed the 40-hour workweek, or health-and-safety regulations, to be unconstitutional infringements on the market. For Roosevelt and the New Deal to wrench America into the modern age, new doctrine was needed. The result: a brutal struggle over the courts.
When the civil rights movement challenged apartheid in America, it ran into the racist doctrines that segregationist judges had implanted into the Constitution. Once more, those doctrines -- separate but equal -- had to be overturned. And a Republican chief justice of the Supreme Court, Earl Warren, led the court in doing so -- and the courts came under vicious attack. ''Impeach Earl Warren'' signs went up across the South. And a right-wing backlash against the courts began.
What does the right-wing movement want from judges? It wants judges who will overturn the precedent set by Roe and outlaw abortion. It wants an end to affirmative action, with many saying the Brown ruling that outlawed segregation was wrongly decided.
But it wants much more than this. The Federalist Society is dominated by an obscure sect that believes in the ''Constitution in exile.'' Essentially, adherents argue for a return to the 19th century jurisprudence of the Gilded Age -- calling on judges to overturn the New Deal jurisprudence that empowered Congress to regulate the economy, defend workers, protect the environment and consumers, and hold corporations accountable. No, I'm not kidding, and neither are they.