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Bashing Judges, Then and Now

Conservative rhetoric against Clinton's judicial nominees clashes with conservative rhetoric in favor of Bush's judicial nominees.

By Terry Krepel
Posted 5/23/2005

During the Clinton administration, the Free Congress Foundation was quite vocal in the fight by conservatives against his judicial nominees. The leaders of its Center for Law and Democracy, Thomas Jipping and John Nowacki, fired out regular commentaries eagerly reprinted by the ConWeb. But the foundation has been mostly quiet on the subject of late, and Jipping and Nowacki are nowhere to be found, having moved on from the center.

Why? Perhaps because the previous arguments they made would come back to haunt them.

As ConWebWatch has previously noted, they complained when Clinton was president that there wasn't nearly enough obstruction of judicial nominees, then complained that Democrats were not moving fast enough Bush from filling the judicial seats they fought to keep Clinton from filling.

A closer look at Clinton-era commentaries by Jipping and Nowacki shows that some of the arguments they make against Clinton nominees undermine arguments currently being made by conservatives in support of nominees of President Bush that Democrats have blocked. They can't be found on the Free Congress Foundation site anymore, but they are conveniently archived at

Clinton nominee Richard Paez was a favorite target of the duo. A March 17, 1999, commentary by Jipping complained that Paez "has been so controversial that this is the THIRD time Clinton-Gore have nominated him." A Sept. 3, 1999, commentary by Nowacki claimed that it was Clinton's fault that the Republican-controlled Senate refused for years to act on Paez's nomination: "The fault for this languishing in the Senate lies with Clinton, who kept putting this judge forward again and again, knowing full well he was unacceptable." The same thing applied to another Clinton nominee, Marsha Berzon, Nowacki said: "She has a controversial record too. ... But she too was re-nominated anyway. Neither Paez nor Berzon belong on the Ninth Circuit Court of Appeals."

An Oct. 15, 1999, commentary by Nowacki noted that Paez's nomination was "so controversial that the Senate declined to act on it. So when it expired, Clinton nominated him again. And, knowing it was still controversial, Clinton re-nominated Paez a third time when the second nomination expired." An Oct. 13, 1999, commentary by Jipping insisted that the level of opposition alone was enough to keep Paez and Berzon off the bench: "More than 300 grassroots organizations oppose the Paez nomination and both Paez and Berzon received more opposition in the Judiciary Committee than any other Clinton nominee. The time is right to stand up to Clinton's effort at stacking the federal bench."

President Bush has renominated several nominees, such as Priscilla Owen, but no conservative has suggested that they not be renominated because they are too controversial. In fact, Nowacki wrote in a Sept. 6, 2002 commentary that "the President has sent up more than 120 qualified people, and Priscilla Owen was among the best."

Jipping and Nowacki also took offense when some Democrats suggested that Republican opposition to Paez's nomination was racially motivated. Nowacki claimed on Oct. 15, 1999: "The clear implication that the Senate has something against Hispanic nominees is a lie. The only Hispanic nominee whose nomination has been delayed is Richard Paez, and that is clearly because of the grassroots concerns about his record." In an Oct. 22, 1999, commentary, Nowacki insisted that "successful white and minority nominees are being held to the same standard" and that "when the Democrats tell the nation the Senate is so racist that it can't fairly decide the fate of a nomination, it's not time to keep the kid gloves on."

Conservatives, meanwhile, have accused Democrats who have criticized minority conservative judges of being racist.

Jipping also encouraged Senate Republicans to filibuster Paez. In a Feb. 9, 2000, commentary, he complained that "[s]ome weak Republicans say they don't want to set a precedent by filibustering judicial nominees," then pondered, "Why do Republicans refuse to do what it takes to accomplish what they say they believe in?"

Conservatives, of course, have screamed about Democratic filibusters of Bush judicial nominees and have parsed and qualified the word to cobble together a barely plausible claim that what Democrats are doing is "unprecedented."

An Oct. 6, 1999, commentary by Jipping insisted that "grassroots conservatives do not argue that the Senate should never confirm a single Clinton nominee" and to claim otherwise is a "fake strawman." Meanwhile, some conservative commentators have claimed that Democrats oppose all Bush judicial nominees, even in the fact of more than 200 Bush nominees being approved by the full Senate, many with overwhelming Democratic support.

Nowacki even attempted a little historical revisionism regarding one particular judge in a May 17, 2001, commentary, he claimed that Clinton's nomination of James Wynn of North Carolina "went nowhere in the last Congress because of his clear record as a judicial activist -- not because he was a Clinton nominee." In fact, all Clinton nominees from North Carolina were blocked by then-Sen. Jesse Helms, the North Carolina Republican, who insisted the court needed no more judges. When Bush became president, however, Helms changed his mind.

Jipping left Free Congress in 2002 to be a senior fellow in legal studies at the conservative group Concerned Women for America, but has left there as well. The most recent published work we could find from Jipping is a July 2003 commentary published at WorldNetDaily bashing, you guessed it, Clinton-appointed judges. Nowacki left Free Congress in late 2003 to become senior counsel in the Justice Department's public affairs office. There weren't enough conservative ideologues in the Department of Justice, apparently.

Today, the Free Congress Foundation's Center for Law and Democracy is dormant. Its page on the Free Congress site hasn't been updated in more than two years, and the center's web site hasn't been updated since January 2004. Yet it contains pertinent facts that also undermine current conservative arguments, such as "The Republican-led Senate left 102 Clinton nominees unconfirmed," which pales in comparison to the mere 10 that Democrats have blocked.

Given the amount of backtracking, parsing and overall insisting that what Jipping and Nowacki said back then does not apply now, dormancy may be the best option.

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