President Bush has re-nominated seven candidates for the federal appeals courts.
Each was blocked by Senate Democrats during his first term. He also sent back to
the Senate five other nominees for the federal appeals courts whose
confirmations were slowed because of Democratic concerns regarding their legal
backgrounds. Bush has accused Democrats of blocking votes on so many of his
nominations that they have created "judicial emergencies."
In reality, Bush has had more judicial nominees approved than in the first terms
of Presidents Clinton and Reagan, and the administration of his father. Of the
214 nominees sent to the Senate for a vote during his first term, Democrats
blocked only ten, using the filibuster. As such, 95 percent of Bush's nominees
have been approved. By contrast, from 1995 to 2000, while Republican Senator
Orrin Hatch was chairman of the Judiciary Committee, the Senate blocked 35% of
Clinton's circuit court nominees.
Bush has repeatedly said that all of his nominees are well qualified to serve on
the nation's courts. He has said, "They are of the highest caliber. These are
superb nominees." And he has stressed that "they represent mainstream values."
However, a review of his nominees indicates that most of them could hardly be
construed as holding mainstream legal and public policy ideas. Many, in fact,
have extremely conservative views.
Perhaps the most conservative nominee is California Justice Janice R. Brown. She
opposes Social Security, calling it part of the government's "socialist
revolution." As a strong opponent of state and local authority, she
characterized a city ordinance requiring some housing to be made available to
the poor, elderly, and disabled as the theft of private property. She also
indicated that racially discriminatory speech in the workplace is protected
under the First Amendment right to free speech, even when it meets the legal
definition of harassment. In a case involving far-reaching drug testing by an
employer, she ruled for the employer, despite the California Supreme Court and
the U.S. Supreme Court having rejected the testing as unconstitutional. She also
argued that the First Amendment should permit corporations to make false or
misleading representations without legal ramifications.
Priscilla Owen, a Justice on the Texas Supreme Court, once argued for a very
narrow view of a state law regarding the ability of minors to obtain an abortion
without notifying a parent. Her argument was so radical that fellow justice
Alberto Gonzales, now U.S. Attorney General, said that agreeing with her legal
argument would be an "unconscionable act of judicial activism." On a case in
which the Texas Supreme Court reversed a law regarding the Texas water code, she
disagreed, arguing that landowners are exempt from environmental regulations
which are inconsistent with how they wish to use the land. Other rulings would
have made it difficult for employees to prove racial or sexual discrimination.
In another case, her ruling would have prevented a woman from suing a
corporation for a rape committed by a sales representative for its distributor.
Alabama Judge William Pryor has called laws prohibiting gender discrimination in
public education "antidemocratic." He strongly defended the practice of
handcuffing prisoners to hitching posts during summer as a form of punishment.
He has advocated allowing states, based on a simple majority vote, to decide
issues concerning abortion, gay rights, and school prayer, even if it violated
constitutional rights. He filed a brief with the U.S. Supreme Court supporting a
law that permitted homosexuals to be imprisoned for consensual sex in the
privacy of their homes, comparing this to laws prohibiting sex with animals and
children.
Judge Terrence Boyle of North Carolina has twice had rulings reversed by the
U.S. Supreme Court because he allowed congressional redistricting that
disenfranchised black voters. He also indicated that states should not require
equal employment opportunity for women if that state's "culture" has discouraged
women from working in certain professions. He has ruled that an employer was
exempt from the Civil Rights Act of 1964, which protects against job
discrimination based on race and sex.
David McKeague, a judge in Michigan, ruled that an employer could terminate an
HIV-positive employee without trying to accommodate his disability. Another
ruling, which allowed substantial logging without the state's mandated
environmental analysis, was reversed by an appellate court which called his
ruling "arbitrary and capricious."
Although judicial nominees have traditionally had extensive experience, William
Myers of Idaho has never been a judge. He spent 12 years as a lobbyist for
mining and cattle corporations. In 2001 he became the chief legal advocate for
the Interior Department. In this role, he has been criticized for overturning
and eliminating regulations designed to protect the nation's public lands from
corporate interests.
William Haynes is the chief legal counsel for the Defense Department. He was the
principal author of the Bush administration's handling of enemy combatants. In
this capacity, he denied Geneva Convention protections to those captured during
battle. Although he was responsible for the oversight of legal standards for
military personnel, he failed to prevent, and possibly encouraged, the torture
and mistreatment of combatants in Iraq, Afghanistan, and Guantanamo Bay.
Bush has complained about Democrats who blocked some of his nominations, saying
"I believe that some senators are doing this because they don't appreciate the
fact that I named judges who will faithfully interpret the law, not legislate
from the bench. They apparently want activist judges who will rewrite the law
from the bench." But it's clear that many of his nominees have done just that.
Only they have been conservative activists, and those are the types of judges
which Bush approves of. And they certainly are not mainstream
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Gene C. Gerard taught American history at a small college in suburban Dallas, and is a contributing author to the forthcoming book “Americans at War,” to be published by Greenwood Press. His previous articles have appeared in Political Affairs Magazine, Dissident Voice, The Free Press, Intervention Magazine, The Modern Tribune, and The Palestine Chronicle
