Jewish World Review July 14, 2004 / 25 Tamuz 5764

Paul Greenberg

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Reason 51, Prejudice 46

http://www.NewsAndOpinion.com | It was a close call when the U.S. Senate was finally, finally allowed to vote on Leon Holmes' nomination as a federal district judge here in Arkansas.

It's been almost 18 months-a year and a half-since the president made this nomination. If only Leon Holmes had been one of your mediocre nominees, he would have been a shoo-in. If only he'd been less of a scholar, advocate and just plain concerned citizen, there would have been no problem. Alas, he was an outstanding pick. And something there is in American politics that abhors quality, and sends your more cautious pols skittering away in the opposite direction.

Don't get me wrong: A little quality is just fine in a nominee before the U.S. Senate, but not too much. Then the nominee becomes, yes, controversial. The same goes for religion. It's just fine if the nominee has one, but not if he really believes all that stuff-or, even worse, acts on his beliefs. Especially when they concern a controversial issue, such as abortion.

Ooo-wee! Then there's a problem. Your standard, upwardly mobile politician is all for principles in principle, but to act on them-well, that might prove dangerous to his electoral health. Religion is fine in its ceremonial place, but if taken too seriously, it could interfere with what's really sacred to some politicians: re-election.

Excellence is risky in a judicial nominee. Because it's so easy to caricature it. Just rip a couple of decades-old statements from the nominee out of context, or highlight a stupid remark he once made in a yellowed old letter to the editor, one for which he has repeatedly apologized, and-Voilą!-he emerges as an ogre.

In this case, the Leon Holmes whom critics painted as a woman-hating religious fanatic bore no resemblance to the real man, the man folks here in Arkansas know and respect. I myself first met Mr. Holmes as a client and, like so many, became a fan. Watching the ordeal he's undergone over the past year and a half, you come to understand why some fine people who've been nominated for the federal bench wish they hadn't been. And why some presidents settle for second-best instead of going for the gold.

The Clinton administration missed an opportunity-one of many-by failing to nominate the Arkansan jurist Richard S. Arnold to the Supreme Court of the United States. As chief judge of the Eighth Circuit Court of Appeals, Judge Arnold had become a byword far beyond Arkansas for his incisive opinions. But his was entirely too keen a mind, and Bill Clinton would in the end settle instead for what's-his-name or what's-her-name, content to add to the surfeit of mediocrity already on the court.

Better to nominate the forgettable than someone whose light no bushel could hide. Such a nominee could be-a damning word in Washington-controversial. As if greatness is not regularly controversial.


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Let it be said for George W. Bush, whom no one would confuse with an intellectual, that he recognizes intellectual courage in others. He had the courage to nominate someone like J. Leon Holmes (along with outstanding talents like Miguel Estrada and William Pryor) even though he knew such selections would unleash a mudstorm of criticism in the Senate. And then he had the guts to stick with his nominees till the end. Or until they themselves tired of all the hassle.

Unfortunately, it's easy to smear a judicial nominee if he's been conscientious enough to take an active role in politics or the law. Indeed, the more he has contributed to the public dialogue, the more of his statements can be wrenched out of context and distorted. The Ted Kennedys and Patrick Leahys are experts at this low art, as demonstrated by their campaign against Leon Holmes' confirmation.

For example, one of the most frequently used quotes against Mr. Holmes came from an article he wrote with his wife for a church publication, in which they dared to quote St. Paul. ("Wives, submit yourselves unto your own husbands, as unto the Lord.") No need to go into detail, namely that in the same article, they explicitly noted: "The distinction between male and female in ordination has nothing to do with the dignity or worth of male compared to female." And also, "Men and women are equal in their dignity or value." Anybody who really believes that Leon Holmes is in favor of the subjugation of women can't have met Mrs. Holmes. Polite as she is, Susan Byrd Holmes has never been shy about sharing her views on a variety of topics.

Nor did his critics note that Mr. Holmes has always respected the distinction between secular and religious law-in practice and in his scholarly researches into both. ("Christianity and the political order," he once wrote, "are assigned separate spheres, separate jurisdictions.")

Those senators who argued that Mr. Holmes' deeply held convictions should disqualify him from serving on the bench came perilously close to requiring a religious test (or is that a non-religious test?) for holding an office of trust under the United States, despite Article VI, Section 3 of the U.S. Constitution.

I wouldn't accuse his critics of holding Leon Holmes' faith against him. It wasn't his being a Catholic that offended them, but, when you sweep aside their euphemisms about a nominee's views being held too deeply, what really bothered them was his being too Catholic.

As in the case of Alabama's William Pryor, this nominee was accused of actually believing what his church teaches. Sir Thomas More got into trouble the same way; his enemies didn't mind his lip service to the church but that he took its doctrines soul-seriously. You could even say he lost his head over them.

Judge Pryor, like Counselor Holmes, was accused (falsely) of being soft on women's rights, and he had to settle for only a temporary appointment to the appellate bench. But the U.S. Senate now has done better by Leon Holmes, going on record 51 to 46 in favor of reason-and reality. So let's all give the Senate a resounding vote of confidence-by the same close margin.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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