She worked for 30 years at a California hospital before having to take disability leave. But when 60-year-old Joan Stevenson felt well enough to return, the hospital turned her away.
The evidence was clear: age discrimination, something explicitly outlawed by the California Legislature. Stevenson sued. Each of the California Supreme Court justices agreed with her.
Well, all but one.
Justice Janice Rogers Brown didn’t dispute the charge of age discrimination. She just felt the legislature shouldn’t prohibit it. “Discrimination based on age,” she wrote, “is the unavoidable consequence of … time.”
On this fourth anniversary of President Bush’s first batch of judicial nominations, and as Senate Majority Leader Bill Frist (R-Tenn.) seems ready to pull the trigger on his “nuclear option,” it’s worth looking at the Stevenson case and others. They tell us what the fight is really about.
It certainly isn’t about whether a president deserves an “up-or-down vote” on his nominees. President Bush has gotten that in more than 200 cases. This debate is about seven of them. By contrast, Republicans blocked more than 60 from President Bill Clinton.
And it certainly isn’t about whether filibusters are legitimate: Republicans filibustered a Clinton nominee for surgeon general. When Clinton nominated Richard Paez to an appeals court, they filibustered again, eagerly joined by a new Senator named Frist.
So what is it about?
It is mostly about the nominees themselves — so extreme, insensitive and politically motivated that they have earned criticism not just from liberals, but conservatives, colleagues and even the president’s attorney general.
The president vows he will never give in. He tells us that his Gang of Seven represents “mainstream values” and that they will “interpret, rather than make, the law.”
In fact, just the opposite is true. These nominees are agenda-driven, results-oriented, would-be “makers” of the law. We should assess them not by the president’s words, but by their own deeds.
Consider those of Texas Supreme Court Justice Priscilla Owen, Bush’s 5th Circuit nominee. Did a teenager paralyzed in an auto accident because of a faulty constraint mechanism want to have his case heard in Texas court? Owen tried to say he couldn’t. Could a woman raped by a vacuum cleaner salesman sue the company, which had hired him without a background check? Owen said no.
A Texas law designed to help pregnant teens obtain an abortion with court permission? She ignored it. Attorney General Alberto Gonzales was on the court with her back then. He called her dissent an “unconscionable act of judicial activism.”
What about William Myers, the 9th Circuit nominee? He has devoted his career to gutting environmental laws. He has argued that clean water laws protecting lakes were unconstitutional and compared laws protecting the environment to “King George’s tyrannical domination over the colonies.”
Later, he was at the Interior Department. There, after consulting with the interested corporation but refusing to consult with the effected American Indian tribe, he reversed Clinton-era environmental policy and rewrote regulations to pave the way for the opening of a cyanide heap-leach mine on sacred tribal land.
But by far, the prize for top judicial activist goes to California’s Brown.
Roosevelt’s New Deal, praised so highly by the president in his State of the Union? She calls it “our own Socialist revolution.”
Social Security, minimum wage laws, the 40-hour work week? Brown questions their constitutionality. She thinks senior citizens “blithely cannibalize their grandchildren to get as much free stuff” as they can.
And the other four are no better.
The White House makes much of the gender and race of its nominees. As someone who worked for women’s rights from the first case I ever argued, this is particularly offensive.
There are some moderates, of course, who feel uneasy defending use of the filibuster, which was used so effectively by Senators to block civil rights legislation in the 1950s. The fact that something has been used for a long time doesn’t mean it should continue; otherwise you’d be reading this by candlelight. In fact, I feel a twinge of discomfort myself.
But only a twinge. The filibuster is a tool. Like a hammer, it can be used to build or destroy. The point is not whether the Democratic Senators use the filibuster. It’s what they use it for.
In this case, the Democrats, who collectively represent more Americans than the Republicans seeking to block them, are using it to build, for with new powers, the Gang of Seven would damage America for decades. Moreover, to ban the filibuster now would destroy any meaningful advise-and-consent role from the Senate.
No wonder, Senate Judiciary Chairman Arlen Specter (R-Pa.) predicts that if his party succeeds, “the Senate will be in turmoil, and the Judiciary Committee will be hell.”
And while some have proposed negotiating a solution — taking only some of the rotten apples out of the barrel — there is a better way.
In fact, it is one suggested by one of the president’s chief allies, Utah Sen. Orrin Hatch (R), in his book “Square Peg: Confessions of a Citizen Senator.”
It was 1993. Democrats controlled the Senate. Clinton was weighing two Supreme Court appointees.
He called Hatch for advice. Hatch urged him to eliminate one, former Gov. Bruce Babbitt (D-Ariz.), who would have been too controversial. He recommended appointing Ruth Bader Ginsburg and Stephen Breyer. Clinton did.
The story doesn’t appear in Clinton’s memoir. Does Hatch have the story exactly right? That doesn’t matter. What’s important is Hatch’s admiration for this attempt to reach out across party lines.
Now, Hatch and others should persuade this president to do the same. Why bring the Senate to a halt for extremists who think that protecting lakes from contamination is unconstitutional, and who still oppose the New Deal?
On anniversaries, married couples sometimes renew their vows. On this anniversary, the president should abandon his. He should reach out, reassess and recruit replacements who would do him and the American people right.
Nan Aron is president of Alliance for Justice.