Republican Anti-Filibuster move
is all about
"religious right" takeover of the
federal judiciary

Introduction

High-ranking congressional Republicans are increasingly arguing that efforts by Democrats to use filibuster rules to block controversial federal court nominees are examples of religious bigotry.

This new strategy, alongside threats to employ the “nuclear option” to revise filibuster rules, appears to have been undertaken at the behest of powerful Religious Right groups.

This new approach is not accidental. It’s part of a well-coordinated strategy to convince undecided Americans that efforts to block judges with extreme views are examples of bias against people of faith.

Several Religious Right organizations are now parroting this same message. On April 24, the Family Research Council will sponsor a telecast to evangelical churches all over the nation asserting that the long-standing filibuster rules are really an attack on religious people and religious faith. Senate Majority Leader Bill Frist is scheduled to offer comments as part of the event.

Behind Closed Doors: The Message Changes

Frist, House Majority Leader Tom DeLay and other GOP leaders have promoted this message of bias against faith when speaking to the general public. Behind closed doors at Religious Right gatherings, however, they’ve extended their remarks to make it clear what’s really going on: removing the filibuster is seen as the best vehicle to stack the federal courts with judicial extremists who will change social and legal policy in America.

Speaking to the Family Research Council in March, Frist ticked off a laundry list of items he is prepared to deliver to the Religious Right. “In this Congress,” he said, “we’re going to continue to work on issues that are important to you, to me, above all to America’s future. That includes good judges, the sanctity of marriage, and, I just mentioned, the culture of life, as well as protection for the unborn.”

Days after that meeting, Religious Right pastor Rick Scarborough of Texas convened a two-day summit to discuss ways to rein in the federal judiciary and enable Bush to push his nominees through the Senate. Speaker after speaker attacked the filibuster rules and demanded implementation of the so-called “nuclear option” – voting to abolish filibuster rules so that Bush appointees could be seated with a simple majority vote.

Filibusters: What’s At Stake

Religious Right groups realize what is at stake in the filibuster battle – and it’s not combating religious bigotry. The facts is, 205 Bush judicial appointments have already been approved. The vast majority of these men and women are people of faith. Only a few are being blocked – and those because of their extreme views on interpreting the law, not their religious beliefs.

California Supreme Court Justice Janice Rogers Brown, for example, is being opposed for her narrow interpretation of constitutional protections. Brown apparently believes that the idea that the Bill of Rights is binding on the states, a legal doctrine known as “incorporation,” is invalid. This is an extreme view far outside the judicial mainstream. Were Brown’s view adopted, states would be free to establish official religions, impose religion on citizens and engage in other activities detrimental to religious freedom.

The Supreme Court began incorporating portions of the Bill of Rights early in the 20th century. In the 1940 case of Cantwell v. Connecticut, the justices specifically incorporated the First Amendment. The incorporation doctrine is now an important part of American constitutional law and is no longer considered controversial. Even conservative justices on the U.S. Supreme Court accept incorporation. Yet Brown has her doubts. The opposition to her elevation to the federal bench is based primarily on this radical view and others she holds that are anchored firmly in her legal philosophy. Her religious beliefs have nothing to do with the opposition she had engendered and are not relevant to the discussion.

William Pryor, who was placed on the 11th Circuit Court of Appeals by a recess appointment, is similarly opposed due to his legal theories and past statements. During his tenure as Alabama attorney general, Pryor made numerous public statements attacking church-state separation. His opponents say he lacks respect for minority faiths and believes in majority rule. Pryor is not being opposed due to his religious beliefs – indeed, most of his opponents would be hard pressed to tell you what church he attends – the criticism springs from his long track record of hostility toward the separation of church and state, a fundamental principle of American life that underscores religious liberty.

The Plan To Stack The Courts

By championing justices like Brown and Pryor, the Religious Right and their allies in Congress promote a simple plan of court stacking. Once the filibuster rule is out of the way, ultra-conservatives in Congress will be free to work with Bush to load the courts with far-right ideologues. In time, these judges will overturn existing court precedent on issues such as tax aid to religion, religion in public education, reproductive freedom, gay rights and others.

When speaking to conservative audiences, DeLay has been clear about his goal: He wants to see the courts knock down the wall of separation between church and state. In an April 13 interview with The Washington Times, DeLay asserted, "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.” DeLay has been a consistent critic of church-state separation during his tenure in Congress and has frequently addressed Religious Right organizations.

The Constitution provides for a system of check and balances. Ultra-conservatives in Congress and their Religious Right allies are angry that federal courts have struck down some of their blatantly unconstitutional proposals. In response, they have cooked up various schemes: mass impeachment of judges, stripping the federal courts of their ability to hear certain types of cases or abolishing courts wholesale. All of these proposals and more were openly discussed by speakers at Scarborough’s conference, despite their radical nature.

But these proposals are really just rhetorical red meat. They sound good in a fiery speech, and talking about them keeps the Religious Right’s shock troops happy, but they are unlikely to gain traction precisely because they are so radical. Nothing in the Constitution, for example, allows for impeachment of judges just because some members of Congress do not like the decisions they hand down. In fact, the separation of powers would seem to preclude such actions. Attempts by Congress to demand that the courts interpret the Bill of Rights in a certain way would spark a confrontation between two branches of government. While some Religious Right activists on the ground want to see that fight, few in official Washington really want to provoke it.

That leaves the Religious Right with one useable option: Convince the Senate to implement the nuclear option and after that stack the courts with judges who have extreme legal philosophies, judges who will voluntarily rule in ways that please the Religious Right.

What Motivates Opponents

The Religious Right’s opponents are determined to prevent this from happening. They are determined to stop aggressive Religious Right groups from using the courts to convert their narrow theologies into laws that everyone must follow. They seek to protect the integrity of the courts and to buttress our tradition of church-state separation.

That’s what this fight is about. It has nothing to do with “religious bigotry.” It has everything to do with what type of country we’ll leave the next generation. Will it be a multi-faith republic where people of all faiths (and none) live together in peace thanks to the separation of church and state or will it be a quasi-theocracy where the Religious Right has been handed the power by federal courts to meddle in everyone else’s lives?

We must make every effort to see that it is the former, not the latter.