Angry at the Arizona Abortion Ruling? Blame Democrats Too.

by Molly Redden | August 1, 2012

On Monday, U.S. District Court Judge James A. Teilborg upheld an Arizona law banning abortions 20 weeks after a woman’s last period. The law, which was signed by Gov. Jan Brewer and profoundly curtails existing abortion rights, will now almost certainly go into effect on Thursday.

At first blush, the players who facilitated the ruling—the uncompromising, rightwing governor who signed the bill; the ultra-conservative general assembly members who shepherded it to passage; and the recalcitrant judge, who was moved by his personal passions to defy well-established abortion law—exhibit a familiar scenario: Conservative dominance of the courts has, once again, thwarted a cherished Democratic objective.

But that’s only half the story. Judge James A. Teilborg, after all, was an appointee of President Bill Clinton. And the tale of how he ended up on the federal bench illustrates perfectly what can transpire in the lower courts when Senate Democrats fall asleep at the wheel.

When Clinton nominated Teilborg to the federal bench in 2000, Arizona’s courts were facing a daunting judicial backlog. To ameliorate it, Congress created three new U.S. District Court positions, and Sen. Jon Kyl recommended Teilborg to fill one of them. At the time, Teilborg was a Phoenix trial lawyer and longtime friend of Kyl’s who had given the senator $13,150 up to that time in campaign donations.

Immediately, Democrats in the GOP-controlled Senate blocked Teilborg’s confirmation and that of three others, in retaliation for Republicans’ refusal to hold confirmation hearings on Clinton’s many other judicial nominates—a hefty portion of which were minority or female candidates. Republicans made red-faced speeches about Tom Daschle’s dilatory tactics; Democrats gladly returned fire.

But in the stalemate, no one bothered to learn anything about the nominees who would, eventually, become judges. When Teilborg's confirmation hearing inevitably came to pass, Democrats used it as an opportunity to issue furious sermons about Republican obstructionism, rather than examine the nominee. By the time Senate voted, there had been virtually no talk of his qualifications or objectives. One news account called the vote “an afterthought,” and Sen. Pat Leahy noted that Teilborg and three fellow nominees had “moved very, very, very rapidly.” He was confirmed in a vote of 95-0, becoming one of the very last nominees to join the federal bench in the Clinton era.

Years later, Sen. Pat Leahy would cite his confirmation as an act of Democratic cooperation. In a 2008 letter addressing Republican complaints about blocked judicial nominees, Leahy wrote, “Senator Kyl should recall that I cooperated with him over the years to confirm a number of judges in Arizona. … Among the last judges confirmed in 2000 was his good friend James Teilborg.”

To be sure, in the time since his nomination, Teilborg has served a fairly normal judgeship, sentencing folks who have been found guilty of fraud, violence, and drug trafficking. (In one of the more unusual cases he presided over, a part-time Apache firefighter intentionally lit what would become the largest blaze in Arizona history, in the hopes that he would be called up as an emergency responder for $8 an hour.)

But there have been a few highlights (or lowlights). In 2003, as a visiting judge to a federal appeals court panel in Montana, Teilborg sided with James Bopp, the Citizens United architect, that a Montana campaign finance limit violated the First Amendment rights of a state Right to Life chapter. His fellow panel members later withdrew their opinion, effectively striking down the limit. Four years ago, Teilborg overturned a massive, $280 million jury finding against the company that owns the University of Phoenix network of for-profit colleges.

And now, he has issued a ruling which will force Arizona abortion clinics to stop providing abortions to women who may be just 18 weeks into their pregnancies—even if the fetus has developed horrible abnormalities. Whatever your thoughts on abortion, Teilborg’s decision is something of a legal travesty. As others have pointed out, it defies firmly established Supreme Court precedent that bars states from prohibiting abortions that occur before a baby is viable outside the womb. And Teilborg relied partially on the theory, not widely accepted in the medical community, that an unborn child can experience pain at 20 weeks.

We’ll never know what might have stood out to Senators had they cast a cursory glance at Teilborg’s curriculum vitae when he was a nominee back in 2000. And in a Republican-controlled Senate, he was sure to be nominated as soon as his confirmation was allowed to come to a vote. But that final vote for Teilborg’s confirmation—95 Senators in favor, and not a single one in dissent—tells me that the Republicans weren’t the only party to greenlight Teilborg to rule with abandon.

Note: This article initially quoted contemporary accounts of Teilborg's confirmation that called the 95-0 vote a "record vote." As some have pointed out, it's unclear what made that vote a "record," so I've removed the reference.

Follow me on Twitter at @mtredden

Source URL: http://www.newrepublic.com//article/105636/molly-redden-angry-arizona-abortion-ruling-blame-democrats-too