The Senate struggle over George W. Bush’s stalled judicial nominations has very little to do with lower-court appointments and almost everything to do with the Supreme Court. As the debate rages on, Republican conservatives, particularly their leader, Sen. Bill Frist of Tennessee, should pay a little more attention to history and to what undoubtedly will be in store for them in the future.
It all began, at least in the modern era, with Lyndon Johnson’s nomination of liberal Abe Fortas to be chief justice of the United States. Fortas didn’t even want the job. In fact, he hadn’t wanted to be an associate justice of the Supreme Court in the first place, mainly for financial reasons, but Johnson was a hard man to turn down when he truly wanted something.
Fortas wasn’t alone in his distaste for the appointment. The Senate Republican minority also didn’t want him to become the nation’s top jurist, and set out to waylay his confirmation in about the only way open to it, a filibuster. Unable to get the nomination to a vote after months of trying, Johnson ultimately withdrew it.
But Democrats didn’t forget, and they made Richard Nixon pay for it, turning down his first two Supreme Court nominees, one of whom, Clement Haynesworth, was eminently qualified. Nixon was so infuriated that his in-your-face second nomination of the clearly unqualified G. Harrold Carswell was an embarrassment.
So now in anticipation of at least one vacancy on the high court in the coming months, Senate Republicans are desperately seeking a way to change the anti-filibuster rules to keep what happened to Fortas from repeating itself with Bush’s first high-court appointment, which probably will be for the chief justice. In doing so, they are skating on a pond of scum ice that several of their former colleagues, including Sen. Robert Dole, have warned is ready-made for disaster.
Most disturbingly is Frist’s seeming sudden alignment with religious factions that would paint as un-Christian the minority Democrats or anyone else, including GOP moderates, who oppose their fix. The majority leader is expected to join several prominent Christian conservatives on a telecast that portrays Democrats, and presumably moderate Republicans who are opposed to the change, as against people of faith. It is, of course, among the more dangerous decisions by a congressional leader in some time, particularly one who is said to harbor presidential ambitions for 2008 and who professes to support an independent judiciary.
Religious zealotry has no place in this struggle and no leader of either party should encourage such an attack on the separation of church and state. One need only look at the Middle East to understand what turmoil can come from mixing the two. Does Frist, a distinguished physician, truly believe that one has to agree with his political positions to be a member of the faith? How would he have reacted to that argument had it been put forth by Franklin Roosevelt when he tried to enlarge the Supreme Court to insulate his New Deal legislative successes from rulings of unconstitutionality?
Why Frist _ who has consistently appealed for compromise on the judicial nominations and has refused to lend himself to the histrionics and political tirades of House Republican leader Tom DeLay of Texas _ would suddenly decide to join in this religious hysteria is a puzzle. Some observers immediately saw it as a move to solidify his appeal as a potential 2008 presidential nominee to a GOP base that has become decidedly more linked to the Christian right and its concept of values. Others argue that he personally is strongly faith-based and truly believes in a reorientation of the ideological makeup of the federal judiciary.
Whatever his motives, he should consider that Republicans will not always control Congress or the White House and that the rules changes they make now most assuredly will come back to haunt them. His colleagues of another era prevented Fortas from ascending to chief justice by using those rules. Furthermore, as a proclaimed man of faith who has dedicated much of his life to public service from his continuing pro-bono practice as a surgeon to his leadership in the Senate, he should understand that things that are Caesar’s should be left to Caesar and those that are God’s should be left to God. Otherwise, his own position becomes utterly un-Christian.
(Dan K. Thomasson is former editor of the Scripps Howard News Service.)