Crib Sheet: Judicial Nominations

The judges President Bush puts on the bench will affect your life for the next forty years. So pay attention.

By Nan Aron, President, Alliance for Justice

Judicial nominations have been a contentious issue over the past several years of the Bush administration and continue to heat up with an impending Supreme Court vacancy looming. The courts belong to all Americans, not just the party in power, which is why we care about judicial nominations. New appointees will help decide, among many other things, whether Americans have a constitutional right to privacy, whether the federal government will be allowed to protect our air and water, and whether Americans can count on the enforcement of our civil rights laws. Federal judges are appointed to their positions for life, which means that unlike the President, who will leave office in four years, the judges appointed today will have an impact on YOU for the next forty years.

Senators are fulfilling their constitutional duty of providing checks and balances. Though some conservative politicians like to make it sound like any questioning of judicial nominees is tantamount to dragging our democracy through the mud, in fact, the founding fathers mandated the Senate’s role in selecting judges as part of the system of checks and balances. That role is supported by history, documented by constitutional scholars, and previously recognized even by today’s Republicans.The Constitution assigns the President and the Senate co-equal roles in the judicial appointment process, granting the President the responsibility of nominating individuals and the Senate the duty of “advice and consent.” The Constitution’s framers included the “advice and consent” responsibility – an important check on the President’s powers – with the intent of making a nominee’s rejection a very real possibility. Throughout our history, in fact, the Senate has rejected one in five Supreme Court nominees. During President Bush’s first term, the Senate confirmed 204 of his federal court nominees – over 95% – while Senate Democrats rejected only 10 through a procedural tool called the filibuster. The filibuster – or the right to engage in “extended debate” – is one of the defining characteristics of the Senate. In order to end debate on a piece of legislation or a nominee, at least 60 senators need to agree to move forward to a vote. Without 60 votes to end debate, the legislation or the nominee is “filibustered.” The filibuster serves as an important element of the checks and balances system. It prevents a partisan majority from ignoring the views of the minority party, promoting bipartisan compromise and moderation.

Filibuster opponents are now trying to destroy Senate traditions. Some Senate Republicans are now threatening to use a procedural maneuver to get rid of the filibuster with regard to judicial nominations. This plan has been dubbed the “nuclear option” because it would have disastrous consequences for the U.S. Senate and our democracy.

President Bush is promoting confrontation, not consultation, on judicial nominees. President Bush jettisoned the past practice of consulting with the opposing party in the Senate on judicial nominations. In a transparent effort to pack the federal courts with judges he hopes will advance his political agenda, the President instead went the confrontational route during his first term. He has continued along that route this term. On February 14, pursuing what some editorialists have called a “scorched earth tactic,” he renominated a slate of controversial, out-of-the-mainstream appeals court nominees, including seven who the Senate filibustered last session. Here are some of the nominees:

• Former Interior Department Solicitor William Myers III has a lengthy record of weakening environmental protections and disregarding American Indian tribal rights in favor of the grazing and mining industries, and has compared federal law protecting the environment to the “tyranny” of King George III over the colonies.
  


• Terrence Boyle, currently a North Carolina Federal District Court Judge, has a record of hostility toward civil rights and disability rights. The Fourth Circuit has reversed him more than 150 times – at twice the rate of the average trial judge in the circuit – for ignoring laws protecting individual rights and subverting basic procedural rules.
  


• Texas Supreme Court Justice Priscilla Owen anchors the anti-choice and pro-business wing of the ultra-conservative Texas Supreme Court. She took campaign money from Enron and Halliburton and then voted in their favor when cases involving them came before her.
  


• William H. Pryor Jr., Alabama’s former Attorney General, described Roe v. Wade as the “worst abomination of constitutional law in our history.” He also has a virulently anti-gay, anti-environment, and anti-individual rights record. As Attorney General, he sought to eliminate parts of the Clean Water Act, the Violence Against Women Act, the Americans with Disabilities Act, the Family Medical Leave Act, and the Civil Rights Act of 1964.
  


• Janice Rogers Brown, a California Supreme Court Justice nominated to the DC Circuit, has suggested that the Social Security system is unconstitutional and accused senior citizens of “blithely cannibaliz[ing] their grandchildren.”
  


• Department of Defense General Counsel William Haynes II was one of the chief architects of the Bush administration’s policies on detainees, which narrowed the legal definition of torture and authorized holding American civilians and others as enemy combatants without access to counsel or civilian courts. A Defense Department investigation concluded that these policies led to the prison abuse scandal at Abu Ghraib and elsewhere.
  

Take action on judicial nominations and protect your rights!

The Alliance for Justice also has a wonderful resource for students interested in bringing this issue to their campuses. They have produced a short film focusing on the importance of the Supreme Court and our rights and protections that hang in the balance.  The film, Just One Vote, features Bradley Whitford (aka Joshua Lyman on The West Wing) as the narrator, and includes insightful commentary by Sierra Club President Carl Pope, former Court of Appeals Judge Nate Jones, and Sylvia Henriquez of the National Latina Institute for Reproductive Health. Contact Amy Likoff at the Alliance for Justice to get your free copy!  

Also check out these recent articles on the judicial nominations controversy:

Bush Revives Candidacies for 20 Federal Judgeships, By Henry Weinstein, February 15, 2005

Filibustering the Truth, By Judd Legum and Christy Harvey, The Nation, March 3, 2005

The Senate on the Brink, New York Times, March 6, 2005

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