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Saturday, November 30, 2013

So it took Judge Janice Brown living up to her extremist promise to wake up the Democrats?

by digby

If the Republicans want to bellyache about losing the filibuster for judicial nominees, maybe they ought to call in truce in the War on Women:
Within hours of each other, two federal appeals courts handed down separate decisions that affirmed sharp new limits on abortion and birth control. One on Oct. 31 forced abortion clinics across Texas to close. The other, on Nov. 1, compared contraception to “a grave moral wrong” and sided with businesses that refused to provide it in health care coverage.

“These are the kinds of decisions we are going to have to live with,” a blunt Senator Harry Reid, the Democratic majority leader, warned his caucus later as it weighed whether to make historic changes to Senate rules. Those changes would break a Republican filibuster of President Obama’s nominees and end the minority party’s ability to block a president’s choices to executive branch posts and federal courts except the Supreme Court.

The moment represented a turning point in what had been, until then, a cautious approach by Democrats to push back against Republicans who were preventing the White House from appointing liberal judges. All the more glaring, Democrats believed, was that they had allowed confirmation of the conservative judges now ruling in the abortion cases. Republicans were blocking any more appointments to the court of appeals in Washington, which issued the contraception decision.

Faced with the possibility that they might never be able to seat judges that they hoped would act as a counterweight to more conservative appointees confirmed when George W. Bush was president, all but three of the 55 members of the Senate Democratic caucus sided with Mr. Reid. The decision represented a recognition by Democrats that they had to risk a backlash in the Senate to head off what they saw as a far greater long-term threat to their priorities in the form of a judiciary tilted to the right.
It's kind of hard for me to believe it took this long for them to figure that out, but better late than never.
Very quickly and unexpectedly, abortion and contraceptive rights became the decisive factor in the filibuster fight. First there were the two coincidentally timed decisions out of Texas and Washington. Then momentum to change the rules reached a critical mass when Senator Barbara Boxer, Democrat of California and a defender of abortion rights, decided to put aside her misgivings, in large part because the recent court action was so alarming to her, Democrats said.

Mr. Reid and many members of his caucus found it especially disquieting that in 2005 they agreed to confirm the two judges who wrote the recent decisions — Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit and Priscilla R. Owen of the United States Court of Appeals for the Fifth Circuit — as part of a deal with Senate Republicans, who controlled the chamber at the time and were threatening to limit Democrats’ ability to filibuster judges if some of Mr. Bush’s nominees were not approved.

Imagine that. You back off and play nice and confirm right wing extremists to the courts and look what they go and do. They issue extreme right wing rulings. I hate when that happens.

Anyway, it seems to have finally awakened the Democrats to the fact that the judicial legacy of eight years in the White house was going to be nil, leaving their mistakes during the Bush administration unbalanced for decades to come. (Pigs will fly out of my crock pot sooner than the GOP will back down on this.)

This isn't quite right, though:
Conservatives have always viewed the federal courts as a last line of defense in the country’s cultural and political fights. Among their base it is a central tenet that electing Republican presidents is vital precisely because they appoint right-leaning judges who will keep perceived liberal overreach in check.

The issue has never been as powerful for liberals. Consider, for example, how often Republican candidates laud Supreme Court justices like Antonin Scalia and Clarence Thomas compared with how relatively rarely Democrats mention liberal justices like Ruth Bader Ginsburg.

“Republicans and conservatives have been better about the base understanding the significance of judicial nominations than the groups left of center,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, which fights for conservative causes in the courts.

Actually, liberals spent decades chasing a dream that they could get back the white conservative vote they lost back in the 60s and one of the primary strategies for doing so was to shed the image of the Warren Court what with all the civil rights and civil liberties that upset those good old boys and girls so much. It was a conscious decision. And it has blown up in their faces with no political benefit. It's too late to stop the Federalist Society revolution, but maybe now they will at least start to mitigate the damage a little.

This is the result of their "grown-up in the room" strategy:
In the case before the Washington appeals court, Judge Brown issued an opinion siding with Freshway Foods, a produce company that opposes contraception and abortion so strongly that some of its delivery trucks have been emblazoned with signs declaring, “It’s not a choice, it’s a child.” In the opinion, she likened the government’s requirement that the company cover birth control for its employees to affirming “a repugnant belief” and wrote that the company would be forced to be “complicit in a grave moral wrong.”
For a long time the Democrats bargained with women's bodies to try to get votes from people who would never vote for them and it never worked.  Some things you just can't split the difference on (and that's assuming the other side isn't simply playing you for a fool.) I'm ever so slightly optimistic that our leaders may have finally learned their lesson.