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At his 1991 state-of the state speech, Gov. Lawton Chiles stood in the House of Representatives, brandishing a three-legged stool. He wasn't threatening to whomp somebody upside the head (though given the habitual bad behavior of the Legislature, who could blame him?); he was illustrating the classic American division of governmental powers: executive, legislative and judicial. You need all three legs, said Chiles. Saw off one, and your stool ain't going to sit right.
The Bush brothers, more accustomed to cushy brocade armchairs than milking stools, don't seem to get this lesson in elementary engineering. Gov. Jeb Bush and President George W. Bush are doing their best to cripple the judiciary, packing the courts with legal pygmies who'll do as they're told, reducing government to, at best, two and a half branches.
Republican logic goes like this: They won, so they should be able to line the bench with Bush-friendly conservatives. Last month, when Democrats blocked a handful of George Bush's judicial nominees, Republicans staged a 40-hour tantrum in the U.S. Senate. In the Bushista worldview, might makes right - in this case, far right. Look at the filibusterees: There's Priscilla Owen, the most reactionary member of a reactionary Texas Supreme Court. She saw nothing improper about taking campaign money from Enron, then writing a majority opinion saving the company almost a quarter-million dollars in taxes. In a case in which a woman was raped by a vacuum cleaner salesman with a history of sexual misconduct, she argued that the vacuum cleaner company wasn't at fault (even though they failed to do a background check on the man), since the salesman was an "independent contractor." Rape must not be allowed to get in the way of capitalism.
Bill Pryor, Alabama's attorney general, is considered a pretty good lawyer who recently burnished his image by helping throw Ten Commandments nut Roy Moore off the Alabama Supreme Court. But he's a states' rights crusader who claimed that chaining prison inmates to a hitching post without water in the summer was not "cruel and unusual," and that Alabama should not have to adhere to federal statutes such the Americans with Disability Act and the Violence Against Women Act.
Then there's Janice Rogers Brown, a California judge who says that the New Deal "marks the triumph of our own socialist revolution," and that government destroys families, erodes the law, steals private property, and causes "war in the streets."
Sen. Orrin Hatch, chair of the Judiciary Committee, insists these are distinguished jurists being picked on by a spiteful Democratic minority. If he keeps repeating this nonsense, he might even come to believe it. What he really means is: How dare these un-American pinko losers thwart the will of the imperial presidency? Reality check: Of the 130-odd Bush nominees, Democrats have allowed 97 percent to be confirmed. During the Clinton administration, Republicans, led by Hatch, blocked 167 nominees because they were prochoice or proenvironment or because, as Sen. Jesse Helms (and others) said, "We have plenty of judges."
Now, evidently, we don't have plenty of judges - or at least not enough of the right sort of judges. But if you care about civil rights, fairness in death penalty cases, or protecting consumers from rapacious corporations, you should be alarmed at the prospect that Owen and Pickering might end up with lifetime appointments to the 5th Circuit Court of Appeals, which covers Mississippi, Louisiana and Texas. If you care about the founding ideals of the nation, you should fear Janice Rogers Brown getting on the United States Court of Appeals for the D.C. Circuit, often regarded as a stepping stone to the Supreme Court. During her Senate hearing, Justice Brown appeared to be unfamiliar with the supremacy clause, the principle that federal law trumps the vagaries of state law. Without it, miscegenation would still be illegal in Mississippi, the poll tax would still be legal in Texas and Alabama might have tried to hang onto slavery a little while longer.
Despite wholesale whining by Republicans, who ludicrously charge Democrats with being antiblack, anti-Southern, and anti-Catholic (as if they haven't noticed who actually makes up the Democratic Party), the filibustering of George Bush's intellectually unimpressive, cynically chosen, ideologically driven nominees is actually the good news. The bad news - at least for those of us concerned with the environment, public education and the rights of minorities - is that nobody can stall Jeb Bush's judicial choices, which are just as scary as his brother's.
Jeb Bush was hostile to the Florida Supreme Court even before the 2000 vote recount, what with the justices' perverse insistence on striking down measures he frog-marched through a compliant Legislature. Replacing the moderate Leander Shaw with the extremist Kenneth Bell shows just how much contempt he feels for the state's highest court. Bell doesn't exactly exemplify the glory of an independent judiciary: He has often allowed as how the courts should be "the weakest branch of government and pay due deference to the legislative and executive branches."
Frank Shepherd, recently installed on the 3rd District Court of Appeals in Miami, will, no doubt, also pay due deference to the wishes of his patron. A property rights zealot, he has argued against citizens' being able to sue over environmental atrocities, he thinks laws to protect endangered species are unreasonable (hell, you can't even eat a manatee), and any measure that might get in the way of a person's God-given right to develop every inch of a piece of land is downright immoral.
Republicans argue that Democrats in Washington and Democrats in Tallahassee put their people on the bench back when they were in power. And so they did, though, to the dismay of many party faithful, Bill Clinton's judicial nominees were moderate. And, until Jeb Bush gained complete power over Florida's Judicial Nominating Commissions, Florida jurists tended to be centrists as well, no matter who appointed them.
Control of the judiciary isn't just a political matter, though both Democrats and Republicans see it that way. Judges who see the law as mere ideology, rather than a stable set of principles, do a violence to the law as a knowable, predictable set of rules which apply in everyday society. The courts are where ordinary citizens look for remedies. If the independent judiciary is compromised, if the Bushes succeed in ripping off one leg of the stool and using it for firewood on their own little bonfire of the vanities, democracy itself will suffer.
- Diane Roberts, a former Times editorial writer, is a professor of English at the University of Alabama.