As the showdown on the so-called "nuclear option" approached, polls showed that the American people opposed scheming on the part of Senate GOP leaders to eliminate judicial filibusters by an overwhelming 2-to-1 margin.
Even among grassroots Republicans, there was broad discomfort with the idea of creating a tyranny-of-the-majority scenario in which the minority party in the Senate would no longer be consulted regarding lifetime appointments to the federal courts.
So there were plenty Republican senators who were looking for a way out of the corner into which Senate majority leader Bill Frist, R-Tenn., had maneuvered them. Democrats simply needed to hold the line, while attracting Republicans who were uncomfortable with Frist's machinations, and they could have secured the will of the people.
Unfortunately, the Democrats buckled. So Republicans will get the votes they want on at least three federal appeals court nominees who should not be allowed on the bench.
Under a compromise worked out by moderate Republicans and Democrats, the "nuclear option" has been averted for the time being -- and perhaps permanently.
But in return for that concession by the Republicans, the Democrats have agreed to allow confirmation votes on three judicial nominations that had been blocked: Janice Rogers Brown, William Pryor Jr. and Priscilla Owen. The trio were among the ten appeals court nominees whose records of judicial activism, ideological rigidity and ethical misdeeds were so troubling that a substantial number of senators felt they ought not be given lifetime tenures on key appellate court benches.
It now appears that confirmation is all but certain for the nominees: That's bad news for Americans in general and, in particular, for low-income citizens, people of color and women who look to the nation's highest courts for a measure of protection against discrimination and other forms of government-sanctioned abuse.
Brown, who has been nominated to serve on the powerful US Court of Appeals for the District of Columbia Circuit, has condemned the New Deal, which gave the United States Social Security, the minimum wage and fair labor laws. She has expressed doubts about whether age discrimination laws are a good idea. And she has made it clear that she is no fan of affirmative action or other programs designed to help minorities and women overcome centuries of oppression.
Pryor, while serving as attorney general of Alabama, fought to undermine the authority of Congress to prohibit discrimination and to protect the environment, to maintain separation of church and state, to protect reproductive freedom and to guarantee equal protection under the law for gay men and lesbians. He has been nominated to serve on the Eleventh Circuit Court of Appeals.
Owen, who has been nominated to serve on the US Court of Appeals for the Fifth Circuit, established a record on the Texas Supreme Court of unswerving loyalty to corporate interests. She has, in addition, adopted such extreme antiabortion rights stances that even her fellow conservatives, including Alberto Gonzalez, who was then a Supreme Court justice but now servers as US Attorney General, have distanced themselves from her.
All three nominees have drawn broad opposition from civil rights, women's rights, public interest, religious, environmental and labor groups. None of them should ever be allowed anywhere near an appeals court bench. Yet it is likely that, as a result of the deal worked out by the moderate senators, all three will soon be donning the robes of the federal judiciary.
This "compromise" may have averted the "nuclear option" for a time. But it will saddle the federal bench with more bad judges.
That's a bad deal, especially when there is such overwhelming public sentiment for maintaining the right of senators to block inappropriate judicial nominees. Democrats were right to oppose Brown, Pryor and Owen. They will come to regret cutting the deal to let these unacceptable nominees -- and the others who are now sure to be nominated by the Bush Administration -- to be approved.
John Nichols has covered progressive politics and activism in the United States and abroad for more than a decade. He is author of the book, Against the Beast: A Documentary History of American Opposition to Empire.
© 2005 The Nation