Judicial Disappointments

Nan Aron

With a stalled econ­o­my and ongo­ing attacks against U.S. troops, judi­cial appoint­ments seem­ing­ly lack the imme­di­a­cy and scope to reg­is­ter among Amer­i­cans’ con­cerns this elec­tion season.

But rel­e­gat­ing the president’s pow­er to make life­time appoint­ments to the low­er tiers of polit­i­cal con­sid­er­a­tion sets dan­ger­ous prece­dent — and could impact the rights of ordi­nary cit­i­zens for decades to come.

Fed­er­al judges play a crit­i­cal role on such issues as civ­il rights, repro­duc­tive rights, and envi­ron­men­tal and con­sumer pro­tec­tions. And as the recess appoint­ment of Charles W. Pick­er­ing Sr. most recent­ly demon­strat­ed, Pres­i­dent Bush is bent on pack­ing the fed­er­al courts with ide­o­log­i­cal extrem­ists who have shown a will­ing­ness to rewrite stat­ues, dis­tort prece­dent, and mis­rep­re­sent facts to jus­ti­fy posi­tions against many of our trea­sured rights and protections.

Repub­li­can appointees now com­prise 53 per­cent of the fed­er­al judi­cia­ry and are in the major­i­ty on 10 of 13 cir­cuit courts. Giv­en vacan­cies and pend­ing nom­i­nees, by the end of the year Repub­li­cans could gain the major­i­ty on all but one.

Pres­i­dent Bush relent­less­ly push­es to pack the courts, and he has not shown the same com­mit­ment to diver­si­ty demon­strat­ed by Pres­i­dent Clin­ton. Of Clinton’s 440 judi­cial nom­i­nees, 131 were women (30 per­cent) and 112 (25 per­cent) were racial or eth­nic minori­ties. Of Pres­i­dent Bush’s 216 nom­i­nees to date, 46 (21 per­cent) are women and 40 (19 per­cent) are minorities.

Although Democ­rats have been able to block the worst of the nom­i­nees, Bush already has made enough life­time appoint­ments to leave an indeli­ble mark on the fed­er­al judi­cia­ry — and there is no rea­son to believe that his cam­paign to stack the courts will abate in an elec­tion year.

The Repub­li­can Party’s right wing has long rec­og­nized the role of fed­er­al courts in decid­ing pub­lic-inter­est and civ­il rights cas­es. For this con­stituen­cy the judi­cial nom­i­na­tions process is a crit­i­cal fac­tor in deter­min­ing how, and whether, they vote. In this pres­i­den­tial term, we also have wit­nessed the increas­ing involve­ment of anoth­er pow­er­ful Bush con­stituen­cy — the busi­ness lob­by, which is financ­ing pri­vate-sec­tor cam­paigns to con­firm nom­i­nees. Like Ronald Rea­gan, Bush has used his judi­cial nom­i­na­tions to shore up his right-wing base and to increase fundrais­ing. Repub­li­can strate­gist Karl Rove recent­ly spoke about the need to invoke judi­cial nom­i­nees to reach and mobi­lize 4 mil­lion dis­af­fect­ed fun­da­men­tal­ist voters.

So deter­mined is this pres­i­dent to demon­strate this com­mit­ment to remake the fed­er­al bench to his right-wing base that he has nom­i­nat­ed numer­ous peo­ple lack­ing in legal dis­tinc­tion or expe­ri­ence — lead­ing the Amer­i­can Bar Association’s Stand­ing Com­mit­tee on the Fed­er­al Judi­cia­ry to draw the line with some of the more fla­grant­ly inex­pe­ri­enced and unqual­i­fied nominees.

Oth­er nom­i­nees have engaged in activ­i­ties that vio­late canons of legal and judi­cial ethics. For exam­ple, one of Pres­i­dent Bush’s appointees to a Texas dis­trict court, Ron Clark, report­ed­ly asked the White House not to sign his offi­cial com­mis­sion papers — a rou­tine min­is­te­r­i­al action — after the Sen­ate con­firmed him so that he could con­tin­ue cam­paign­ing for reelec­tion to the Texas leg­is­la­ture. Such actions clear­ly vio­late ethics rules for­bid­ding judges and nom­i­nees from cam­paign­ing for polit­i­cal office.

Acri­mo­ny in the Senate

Even with­out a much-antic­i­pat­ed Supreme Court retire­ment, 2003 proved to be one of the most acri­mo­nious years for judi­cial nom­i­na­tions — topped by rev­e­la­tions in Jan­u­ary that Repub­li­can Judi­cia­ry Com­mit­tee staffers spent the last year infil­trat­ing Democ­rats’ com­put­ers to mon­i­tor secret strat­e­gy mem­os and to pass along copies to right-wing media.

Sen­ate Repub­li­cans also respond­ed to Democ­rats’ efforts to per­form their con­sti­tu­tion­al duty of advise and con­sent by arbi­trar­i­ly revers­ing or ignor­ing long­stand­ing rules and prac­tices to grease the path to con­fir­ma­tion for Bush nominees.

Democ­rats remained com­mit­ted to block­ing the president’s most extreme nom­i­nees, and their six fil­i­busters fueled the rage of Sen­ate Repub­li­cans, prompt­ing them to threat­en to elim­i­nate the stall tactic.

Spurring Democ­rats’ anger is Repub­li­can hypocrisy in com­plain­ing of obstruc­tion­ism, giv­en the 63 high­ly capa­ble, mod­er­ate Clin­ton nom­i­nees who were nev­er con­firmed. The ran­cor cul­mi­nat­ed as Repub­li­cans staged a 30-hour reverse fil­i­buster” in mid-Novem­ber to protest Democ­rats’ per­sis­tence. The debate end­ed in failed clo­ture votes to halt debate on three of the president’s most con­tro­ver­sial nominees.

Dur­ing the six years Repub­li­cans con­trolled the Sen­ate dur­ing Clinton’s pres­i­den­cy, Judi­cia­ry Com­mit­tee Chair­man Orrin Hatch gave home­s­tate sen­a­tors absolute veto pow­er and expand­ed the blue slip pol­i­cy to allow sen­a­tors to block nom­i­nees they opposed. The blue slip form itself, giv­en to home­s­tate sen­a­tors for their feed­back on nom­i­nees, said that no nom­i­na­tion would move with­out the con­sent of both home­s­tate senators.

That was then.

In 2003, with a Repub­li­can in the White House and the Democ­rats mak­ing it clear that their loss of the Sen­ate would not result in a cake­walk for Bush nom­i­nees, Sen­ate Repub­li­cans sys­tem­at­i­cal­ly dis­pensed with all rules and threat­ened to employ the so-called nuclear option” to abol­ish judi­cial fil­i­busters. How­ev­er, this option, which would like­ly lead to Democ­rats shut­ting down the leg­isla­tive body, lacks the sup­port of all Repub­li­cans, some of whom rec­og­nize that they will some­day lose con­trol of the Sen­ate and might desire what has always been the minor­i­ty party’s most pow­er­ful tool.

Con­tin­u­ing the court-pack­ing agen­da, Repub­li­can lead­er­ship moved for­ward with votes despite ongo­ing bipar­ti­san inves­ti­ga­tions. The most fla­grant exam­ple of this depar­ture from prac­tice and Sen­ate respon­si­bil­i­ty occurred in the case of Alaba­ma Attor­ney Gen­er­al William H. Pry­or Jr. The com­mit­tee pur­sued evi­dence that he solicit­ed con­tri­bu­tions for the Repub­li­can Attor­neys Gen­er­al Asso­ci­a­tion (RAGA) from com­pa­nies doing busi­ness in the state. As seri­ous as the alleged solic­i­ta­tions appeared and notwith­stand­ing the pend­ing inves­ti­ga­tion, the com­mit­tee moved for­ward with the vote, which went 10 – 9 along par­ty lines. The unre­solved inves­ti­ga­tion pro­vid­ed Democ­rats with fur­ther jus­ti­fi­ca­tion for the sub­se­quent fil­i­buster on the Sen­ate floor.

Politi­ciz­ing the process

The pres­i­dent used Democ­rats’ rejec­tion of Pick­er­ing and Priscil­la Owen in 2002 to urge his right-wing base to return Repub­li­cans to the major­i­ty in 2002. Fol­low­ing Repub­li­can suc­cess in that elec­tion, the judi­cial selec­tion process began to be used in ser­vice of the president’s reelec­tion effort. In an effort to shore up his right-wing base and recap­ture the White House, Pres­i­dent Bush re-nom­i­nat­ed all pend­ing nom­i­nees in Jan­u­ary 2003. And by nom­i­nat­ing such light­ning rods as Pry­or and White House Coun­sel Brett Kavanaugh, the admin­is­tra­tion was offer­ing more reas­sur­ance to the right wing that sym­pa­thet­ic judges would be appointed.

Ear­ly indi­ca­tions were that Bush want­ed to name the first His­pan­ic to the U.S. Supreme Court, and it was wide­ly believed the strat­e­gy was to posi­tion Miguel Estra­da for that appoint­ment by putting him on the D.C. Cir­cuit Court. When it became clear that the Democ­rats would resist Estrada’s nom­i­na­tion to the sec­ond-high­est court in the coun­try, Repub­li­cans charged Democ­rats with an anti-His­pan­ic bias, a patent­ly absurd accu­sa­tion giv­en the large num­ber of Clinton’s Lati­no nom­i­nees who were blocked by Repub­li­cans. Through repeat­ed clo­ture, Repub­li­cans sought to draw His­pan­ic vot­ers’ atten­tion to Bush’s embat­tled nom­i­nee. Sup­port­ers of the president’s nom­i­nees attempt­ed to court oth­er con­stituen­cies through spe­cious attacks on Democ­rats. It was Hatch who asked Pry­or his reli­gion, and when Pry­or respond­ed that he was Catholic, he then accused Democ­rats of oppos­ing him for his sin­cere­ly held reli­gious beliefs on abortion.

Look­ing ahead

Bush’s reelec­tion would pro­vide the oppor­tu­ni­ty to appoint at least three Supreme Court jus­tices. Based on Bush’s state­ments on jus­tices he likes and the kind of judges he has nom­i­nat­ed, all indi­ca­tions show his nom­i­nees would be in the mold of Antonin Scalia and Clarence Thomas. A sec­ond Bush term would cement the Repub­li­cans’ hold on the fed­er­al judi­cia­ry for decades to come.

Nan Aron is pres­i­dent of the Alliance for Jus­tice, a Wash­ing­ton, D.C.-based asso­ci­a­tion of envi­ron­men­tal, civ­il rights, men­tal health, women’s, children’s and con­sumer advo­ca­cy orga­ni­za­tions ded­i­cat­ed to pro­mot­ing a fair and inde­pen­dent judi­cia­ry and strength­en­ing pub­lic inter­est advo­ca­cy. For more go to www​.afj​.org and www​.inde​pen​den​tju​di​cia​ry​.com.
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