Road To Stem Cell Decision Paved By Bush-Era Activism

Yesterday, Judge Royce Lamberth, a Reagan-appointed trial judge in DC, suspended all federal funding for embryonic stem cell (ESC) research — a decision which limits such research in a way that even President George W. Bush found untenable. But yesterday’s decision did not occur in a vacuum. It is the product of many right-wing activists working very, very hard for a very long time.

Indeed, as Michael Tomasky explains in the Guardian, the road to yesterday’s deeply radical decision was paved by Bush-era fights over the judiciary:

This case was not only about the new NIH guidelines, but about the legal standing of the plaintiffs, who were representatives of conservative Christian advocacy groups and research agencies that opposed the Obama NIH proposals. The plaintiff Alliance Defense Fund has a history of anti-gay activism. The group’s standing to sue was in question. In fact, on a previous occasion, Lamberth tossed the suit, arguing that the plaintiffs lacked standing.

That was appealed, and the question of standing was returned to a three-judge panel on the DC Circuit. This is the most important federal circuit court in the country. On June 25, a three-judge panel overturned Lamberth’s earlier decision and ruled that the plaintiffs did have standing. . . .  Now, here’s the question. Who sat on this three-judge panel? They were: Janice Rogers-Brown, Brett Kavanaugh and Douglas Ginsburg. All Republicans. The first two very ideological Republicans. Rogers-Brown, whose nomination was contentious in 2005 and blocked by Democrats for a time until a deal was brokered . . . .

Brett Kavanaugh was an associate counsel for Ken Starr’s Whitewater investigation. He then joined Starr’s firm. He was also active for Bush-Cheney 2000, and was rewarded with this plum assignment.

If anything, Tomasky understates just how deeply ideological these three judges are.  Judge Brown, who was a central figure in 2005′s nuclear war over the filibuster, once compared liberalism to “slavery” and Social Security to a “socialist revolution.”  Judge Ginsburg is a leading “tenther” who once called for America to return to a discredited era when child labor laws were considered unconstitutional.  Judge Kavanaugh’s career of right-wing legal activism speaks for itself.

Nor is yesterday’s decision an isolated incident.  Earlier this month, a Bush-appointed judge in Richmond threw an unnecessary lifeline to right-wing activists challenging President Obama’s single greatest accomplishment — health reform.  Although the law is quite clear that this judge should have dismissed the case, the right is clearly hoping that it has stacked the courts enough to dismantle Obama’s entire legacy.

These decisions, and others like them, need to be a wake-up call to progressives.  For decades, the right has manipulated the Senate rules and thrown their full political support behind deeply radical judicial nominees, while progressives been far less engaged in this fight.  Is it any wonder, then, that the Senate has only confirmed half as many of Obama’s judicial nominees as it did for all other recent presidents?