Of Many Things

On the afternoon of May 22, 1856, Congressman Preston S. Brooks of South Carolina barged into the Senate chamber and used his walking stick to beat into insensibility Senator Charles Sumner of Massachusetts. Two days earlier, Sumner had given a fiery antislavery speech that Brooks claimed had libeled South Carolina.

Although that was the most violent episode in Congressional history, there have been plenty of other nasty moments. There could easily be an annual citation, called the Brooks Award, for the year’s outstanding example of bad behavior in Congress.

If there were such an award it might be given collectively for 2003 to the nine Democrats who are the minority on the Senate Judiciary Committee. For more than a year, they blocked President Bush’s nomination of Miguel A. Estrada for the influential U.S. Court of Appeals for the District of Columbia Circuit by threatening a filibuster if the nomination ever reached the Senate floor.

The 41-year-old Mr. Estrada emigrated from Honduras when he was 17, graduated with honors from Columbia College and Harvard Law School and has served with distinction in the U.S. Solicitor’s office. When he was nominated in September 2002, The Washington Post noted editorially: “There is no sound basis on which to oppose him…. Mr. Estrada must be considered on his merits.”

But he was not. He assured the committee at his hearing that he recognizes that Roe v. Wade, as refined by the 1992 Casey decision, is the law and said he would follow it if he were confirmed. All the same, because he is known to be opposed to abortion the filibuster threat prevailed; and last September Mr. Estrada asked that his nomination be withdrawn.

Whatever possessed the nine Democrats to such a flourishing of figurative walking sticks? Politics, in the first place. The Democrats on the committee cultivate pro-choice groups so relentlessly that they would not have approved Solon if they suspected he were pro-life.

New York’s Senator Charles E. Schumer, the minority’s most vocal crosspatch, tries to put his obduracy into a highminded context. He would bar from judicial appointments anyone he suspects of being what he calls a “conservative ideologue”—which means anyone whose general philosophy is not the same as his own.

The courts would be weakened, however, if every judge had to be stamped from a liberal mold. Some conservative judicial salt can be useful, as the case of Virginia v. Black, decided by the U.S. Supreme Court last April, showed.

That case dealt with a law passed in Virginia in 1952, when the Ku Klux Klan was burning crosses as a symbol of its hostility toward minorities. The law banned cross-burning when it was done to intimidate others, and a section added in 1968 allowed jurors to infer the aim of intimidating from the fact of burning the cross.

In 1998 there were two incidents of cross-burning, but in 2001 the Virginia State Supreme Court overturned the convictions of three men involved in these incidents on the grounds that the cross-burning ban violated the right of free speech guaranteed by the First Amendment.

That judgment was appealed, and on April 7 the U.S. Supreme Court handed down a bundle of opinions as complicated as a Rubik’s cube. Three justices rejected the cross-burning ban completely as constitutionally offensive. Four others, for whom Justice Sandra Day O’Connor wrote a plurality opinion, thought states should be able to restrict cross-burning but that Virginia had gone too far in assuming that cross-burning is itself proof of an intention to intimidate.

Justice Clarence Thomas, whose views usually displease liberals, demolished this thicket of distinctions and upheld the Virginia law in its entirety. Cross-burning has no purpose, he said, but to terrorize part of the population, so “not making a connection between cross-burning and intimidation would be irrational.”

That was the voice of a good sense that ought to be common in courts.

This article appears in January 5 2004.