Nomination Battle – One of the sad realities of our current situation is the increasingly vitriolic partisanship of judicial nominations. Nothing really new here. But what may be new, or at least something that everyone else knew but that I’ve only newly noticed, is how much the press exacerbates this problem, even (or perhaps especially) in what purport to be straight news stories.
A case in point is an article from Tuesday’s Washington Post by staff writer Tom Jackman. Discussing the allegedly “growing opposition” to the nomination of federal district court judge Dennis Shedd to the Fourth Circuit Court of Appeals, this article on its face is simply another report of the usual suspect liberal public interest groups, liberal law professors, and the NAACP offering the usual laments to the appointment by a Republican president of a conservative judge. In fact, this ritual dance of opposition to President Bush’s nominees has come to be so routine and predictable that one begins to wonder if it’s really news, but I suppose it does need to be reported. (Well, there was one odd twist here in the fact department: Jackman wrote that before being appointed a federal district court judge “Shedd spent 10 years on Capitol Hill as a top aide to Sen. Strom Thurmond (R), who nominated Shedd to the appeals court last May.” I’m sure a check of the record would reveal that, as provided by the Constitution, it was the president and not Senator Strom who nominated Judge Shedd. And people complain about bloggers not having editors!)
A closer look, however, reveals that, like so many similar articles, this one really isn’t a neutral report. First, there’s the point-of-view problem with the large bold headline stretching more than half-way across the top of the page: “Judicial Nomination Alarms Rights Groups,” with the also prominent subhead: “Some Fear S.C. Jurist Could Further Sway Conservative Federal Appeals Panel”. So, the news here, the focus of the story, is the “alarm” and “fear” on the left? Why exactly is that more newsworthy than, say, the hope on the right? Could it be that the opposition groups are more organized than the support groups (are there any support groups?), send out more faxes, have more press conferences? The squeaky wheel getting the news might make some sense … if a newspaper didn’t have living, breathing reporters. Right off the bat, then, this is not a story about a debate over a nomination, which would require a fair presentation of all points of view. For example, in that kind of story it would have been worth mentioning that the nominee was rated “well qualified” by the American Bar Association, given the importance that Sen. Pat Leahy has claimed to attribute to the ABA’s views. But there’s no reason to do that here since this is a story about the alarms and fears of the opposition to the nomination.
“Although Shedd’s nomination is the longest-standing among appeals court nominees,” Jackman writes, “its movement to the hearing stage after 13 months still irked some observers.” The one irked observer who is quoted is, of course, Nan Aron, head of the Alliance for Justice, lead opponents here and with other nominations. Now we have alarmed, fearful, and irked. I’m sorry Ms. Aron finds this nomination irksome, or is feeling irk (yes, it is a noun; I looked), but since her feelings on these matters are so well documented in so many cases (see, for example, “Alliance for Justice Outraged Over Committee Action on Judge D. Brooks Smith”, Press Release, May 23, 2002) I wonder if her being irked here is more newsworthy than, say, the feelings of those who are irked/alarmed/angry over Shedd’s nomination being bottled up for 13 months. But since this is an article about alarm and fear and irk on the left, those voices aren’t heard.
A quick look at the web sites of some of the irked, fearful, and alarmed Shedd opponents shed(d)s some interesting light on the nature of judicial nomination politics these days. The leader of the pack is clearly the Alliance for Justice. Its site has some of the expected rhetoric — Shedd’s record reveals “a bias in favor of corporations over individuals”; the Fourth Circuit “is known as the most right-wing court in the country,” etc. And it offers a peculiar take on Shedd’s experience: “Dennis Shedd has been a trial judge since 1990. This appears to make up the bulk of his legal experience.” Can one imagine the Alliance for Justice implying that 12 years experience as a federal district judge, after service as Chief Counsel and Staff Director of the Senate Judiciary Committee, was somehow inadequate experience to qualify a liberal nominee for elevation to an appeals court? Most of the Alliance’s discussion of Shedd, however, consists simply of references to some of his judicial decisions with which the Alliance disagrees, much as one would list the unappealing votes of a political candidate one opposes. But that’s the point: no difference is recognized in the current climate between a judge and a political candidate.
The National Organization for Women (NOW) provided a list of horribles that extended all the way from one to two:
1. “In 1998, he ruled against the American Civil Liberties Union in its challenge to a local school board’s enforcement of a student dress code that regulated skirt lengths and prohibited denim.”
2. In the 2000 election an anti-abortion organization, the South Carolina Citizens for Life, worried about running afoul of the state’s campaign finance law. “SCCL subsequently brought suit challenging the applicability and constitutionality of those campaign finance laws. Judge Shedd granted SCCL a temporary injunction effectively excusing them from complying with the laws while the state Supreme Court considered the case.”
We obviously can’t elevate someone like that to an appeals court.
The National Abortion Rights Action League (NARAL) also listed only two items on its site:
1. The exact same item as NOW’s Number 2, word for word.
2. “Other than his tangentially related decision in the case above, Judge Shedd has no record in the reproductive rights arena. This absence of any proven record of commitment to a woman’s right to choose, coupled with his ties to the current and former Bush administrations, is cause for concern.”
In other words, his record is clear of anything bad. But he hasn’t proven himself in favor of our agenda, and he has “ties” to the current and former Bush administrations. So, now “ties” to the nominating administration are grounds for opposition?
But the most dramatic list of reasons for opposing Judge Shedd were provided by the Planned Parenthood Foundation. Its site warns that “There is a significant threat that virtually all our federal courts could soon be controlled by far-right judges, which would seriously threaten the rights of all Americans,” and it conveniently provides a link to a list of “questionable nominees.” Clicking on Judge Shedd’s name on that list leads to another page, where Planned Parenthood lays out its reasons for opposing him. And those reasons?
“Detailed information forthcoming”
