Religious McCarthyism: What’s Really at Stake in the Judicial Nomination Fight

On Thursday, Sen. Rick Santorum compared Democrats to "...Adolf Hitler in 1942 saying 'I'm in Paris, how dare you invade me. How dare you bomb my city. It's mine.' This is no more the rule of the Senate than it was the rule of the Senate before not to filibuster. It was an understanding and agreement, and it has been abused." On Wednesday, in a similarly shocking choice of words, Sen. Frist said on the floor of the U. S. Senate: “THE ISSUE IS NOT CLOTURE VOTES PER SE. IT'S THE PARTISAN LEADERSHIP-LED USE OF CLOTURE VOTE TO KILL, TO DEFEAT, TO ASSASSINATE THESE NOMINEES.” This tasteless rhetoric was quickly condemned by U.S. District Court Judge Joan H. Lefkow, whose family members were recently murdered. Judge Lefkow also asked lawmakers to repudiate recent "gratuitous attacks" on the judiciary by commentators such as Pat Robertson and by some members of Congress, including Rep. Tom DeLay. "In the age of mass communication, harsh rhetoric is truly dangerous,” she said. “Fostering disrespect for judges can only encourage those that are on the edge, or the fringe, to exact revenge on a judge who ruled against them." The Christian Right needs to cool down its disgraceful and violent rhetoric, as Ted Olson, well-connected Republican and Bush lawyer in the Florida election case recently argued. In a Wall St Journal Op-Ed, Olson urged right-wing extremists to "lay off our judiciary." Olson wrote that..."it is time to take a deep breath, step back, and inject a little perspective into the recent heated rhetoric about judges and the courts."

Okay, let’s get a little perspective. An overwhelming number of Bush judicial nominees have been approved. But Sen. Frist and President Bush still aren’t satisfied. What would you call someone who gets their way more than 20O times but who still gripes about the 10 or so times things didn’t go their way? The word “bully” springs to mind. If anything is certain from the Gospel message of Jesus, it’s that Christians aren’t supposed to be bullies. So it’s very odd that some on the extreme right have tried to make the connection between religious faith and the approval of Bush judicial nominees. It’s especially odd given the over-heated and violent rhetoric so many on the right seem prone to using.

Next May, Old Faithful Progressive will celebrate twenty years of practicing law. In that time, I’ve appeared before and personally known literally hundreds of judges. In my experience, it makes little difference if a good judge is politically liberal or conservative. Frankly, most judges see enough of life and of human weakness at close range that it tempers any kind of political stridency. Eventually they come to see that their own personal views must give way to become a true servant of the law and of the people. But, then again, some judges never get this: there are always those few who see everything through the lens of their own pre-existing agenda. These are the trial judges that always lead the substitution numbers: people know that the facts of their case will be contorted to suit the personal agenda of the judge. The same tendencies exist with appellate courts, and in roughly the same numbers. So far, the approval of Bush judicial nominees also roughly reflects these facts: those with an identifiable agenda have been rejected, most have been approved.

The extreme Christian Right loves to paint upbeat, homey pictures of people who underneath it all have a very dark and intolerant political agenda. As Think Progress notes, here’s how Fox News describes Bush nominee Patricia Owens: “A Sunday school teacher who graduated among the top of her law school class but angered abortion rights advocates by wanting to make it harder for minors to terminate a pregnancy is at the center of the historic storm in the U.S. Senate over the future of the federal judiciary.”

Here's another view c/o The Center for American Progress:

“In fact, in reference to one of Owen's dissents, then colleague and fellow Texas Supreme Court Justice Alberto Gonzales went so far as to describe the decision's proposed interpretation of the law as "an unconscionable act of judicial activism."

Indeed, in critiquing her nomination, The Houston Chronicle took issue not with her being "too conservative" but with the fact that "she too often contorts rulings to conform to her particular conservative outlook." As the San Antonio Express stated, "The Senate should not block a judicial nominee simply because he or she is more conservative or more liberal than the Senate's majority party.… But concerns about Owen go to the heart of what makes a good judge."

But Frist and company cynically play the faith card. Here's a link to the Top Ten Falsehoods told by Republicans about the judicial nomination battle c/o Media Matters. "Falsehood #5: Democrats oppose Bush nominees because of their faith, race, ethnicity, gender, stance on abortion, stance on parental notification ..."

This is not a fight about people of faith-- this is about populating the judiciary with people who lack a judicial temperament because of their own pre-existing political agenda. What is that agenda? Tom Delay was very explicit recently: "The reason the judiciary has been able to impose a separation of church and state that’s nowhere in the Constitution is that Congress didn’t stop them. The reason we had judicial review is because Congress didn’t stop them. The reason we had a right to privacy is because Congress didn’t stop them." Writing recently in the New Yorker, Hendrik Hertzberg summed it up well: "So there you have it, the DeLay agenda: no separation of church and state, no judicial review, no right to privacy." This agenda is not just that of Tom De Lay, but of a determined extremist group that hates contemporary American culture and our history of religious tolerance and respect for minority rights.

It seems clear that this small group want to criminalize ALL abortion and to restrict the legal rights of gay and lesbian Americans to enter into contracts to settle their own affairs. They also want to tear down the wall of separation of church and state, the wall that protects religious people from government interference.

Some Christians may support this agenda, but many more of us do not.
This isn’t what Christianity is really about. It’s about love and compassion and the pursuit of justice that flows from those values. As Christians, we are all called to follow Jesus' commandment to "Love one another as I have loved you." (John 15:12) Jesus welcomed women, tax collectors, Pharisees, and lepers at his table. His behavior indicted those who inflicted hurt on others as they piously honored the purity codes of his day. Following Jesus' example, we declare that using the popular "purity codes" of today, such as sexual orientation, to ostracize and marginalize people is immoral. Similarly, no one is "for" abortion. Most abortions are attended by an enormous amount of emotional pain. But we think the issue is effective prevention of unintended pregnancy, not criminalizing desperate pregnant women or the medical professionals who help them.

Over and over in the Gospels, Jesus is scathing in his dealings with hypocrites. We believe that Jesus would recognize the inherent hypocrisy in decreasing support for family planning or reducing access to contraception while simultaneously seeking to criminalize abortion. Such actions deny women and men access to basic help and information on family planning while, at the same time, forcing them to bear children. These policies have only raised the number of abortions in recent years.

What you can do:

What people need to do is join organizations that speak about genuine Christian values instead of wrapping an extremist political agenda in a Mc Carthyist mock-Christian flag. If you haven't already, please join our movement. Sign the Jacksonville Declaration which stands in support of the separation of church and state which activists in the religious right are trying to overturn. E-mail the signing page to your friends. We want to build a broad movement and we need to know your e-mail so that we can contact you when we need to act. Now is one time like that:
Call your Senators, tell them to reject the vote to re-structure the Senate. If they don't, it will never be the same.