High Stakes in November: George W. Bush and the Future Federal Judiciary

JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law in San Diego says that perhaps the most far-reaching impact of the upcoming November election is who will get to appoint the nation's judges - including its Supreme Court justices - beginning January 2005.



George W. Bush, while trying to convince skeptical conservative activists of his father's Christian bona fides in 1988, reassured them that George I was with them on judicial nominations, as well as abortion. Then he punctuated his declarations with six words that would ensure their support for him 12 years later: "Jesus Christ is my personal savior."

Bush's religiosity permeates his national policies. When Bob Woodward asked him whether he consulted his dad before invading Iraq, Bush said, "He is the wrong father to appeal to for advice; there's a higher Father that I appeal to."

George W. Bush's sort of Christianity also guides his judicial nominations for lifetime appointments to our federal courts. They are judges who would eviscerate civil rights, workers' rights, and the environment. Their agendas are anti-choice and pro-corporate.

Perhaps the most far-reaching impact of the November election is who will appoint the nation's judges beginning January 2005. Although a one-vote margin of the Supreme Court anointed George W. Bush president in 2000, the Court has not voted in lockstep this term. In the Guantanamo and U.S. citizen detention cases, the Court made clear that the President's power is not absolute. It upheld the rights of the disabled, and non-citizens to recover for human rights violations.

The political balance on the Supreme Court hangs by a slender thread. Rehnquist, who has been on the Court for 32 years, is 79 years old. Stevens, a member of the Court for 29 years, is 84. And O'Connor, on the Court for 23 years, is 74 years old. Associate Justice Ruth Bader Ginsburg, 71 years old, is a cancer survivor in frail health. The next President of the United States may have the opportunity to appoint four new justices to the Supreme Court, radically altering the complexion of the precariously divided Court.

It is common for a Supreme Court justice to serve for at least 20 or 30 years. That means the man elected in November will likely determine the fabric of the law in America for the next 40 years. Ralph Neas, executive director of People for the American Way, says "more than 100 Supreme Court precedents would be overturned with one or two more right-wing justices like Thomas and Scalia."

If Bush is elected, we can expect his Supreme Court picks to mirror his choices for our nation's lower federal courts. Two of his nominees have made news recently for their advice on how Bush's interrogators can torture prisoners without risking criminal prosecution.

Former Assistant Attorney General Jay S. Bybee prepared a 50-page document that defied U.S. statutory and treaty law by defining torture so narrowly, it would permit horrific treatment as long it wasn't life-threatening. Bush rewarded Bybee for his legal creativity with an appointment-for-life to the Ninth Circuit Court of Appeals, the federal court with the largest caseload in the country.

Pentagon General Counsel William Haynes II is a career military lawyer with almost no courtroom experience that would qualify him for a lifetime seat on the Fourth Circuit. Yet after Haynes supervised the preparation of a report advising that the President's Commander-in-Chief authority would trump the prohibition against torture, Bush nominated him for a federal judgeship.

The revelations of Haynes' apologies for torture may not resonate with U.S. Senators, who must give their advice and consent to Bush's nominees. The torture at Abu Ghraib prison, Guantanamo Bay and Afghanistan may have poisoned the well for William Haynes.

The Senate has confirmed 198 of Bush's judicial nominees, bringing the vacancy rate to its lowest level in years. Nevertheless, in a campaign trip to Senator John Edwards' home state of North Carolina and to Michigan, Bush claimed that Democrats were unfairly obstructing his judicial nominations.

Edwards' tough questioning of Charles Pickering, Bush's nominee to the Fifth Circuit, was instrumental in the defeat of Pickering's nomination. Bush, however, circumvented the Senate's constitutional role in the selection of judges by appointing Pickering anyway during a Congressional recess.

Pickering's checkered past includes his article explaining how to strengthen Mississippi's statute criminalizing interracial marriages. As a federal district court judge, he engaged in threats and unethical communications to force prosecutors to drop a charge against a man convicted of burning a cross on the lawn of an interracial family.

Bush also ran an end run around the Senate by appointing Bill Pryor to the Eleventh Circuit. Pryor has expressed extreme hostility to a woman's constitutional right to reproductive choice. He called Roe v. Wade "the worst abomination of constitutional law in our history."

But Pryor's contempt isn't limited to women. When he went to federal court to try to overturn a consent decree protecting abused and neglected Alabama children, he told reporters: "It matters not to me whether or not [my actions protect children]. My job is to make sure the state of Alabama isn't run by [a] federal court."

Pryor fits nicely into Bush's mold for right-wing Christian ideologues. The judge said that the challenge of this millennium will be to "preserve the American experiment by restoring its Christian perspective."

Bush's recess appointments of Pickering and Pryor so incensed Democratic senators that they held up several of Bush's other pending judicial nominations. In May, Bush struck a deal with the Democrats. He agreed not to make recess appointments; the Democrats consented to allowing the votes to proceed on the 25 mostly "noncontroversial" pending nominees.

Three weeks ago, however, by a vote of 51-46, the Senate confirmed James Leon Holmes for a seat on the Eastern District of Arkansas, a federal district court. Bush's nomination of Holmes became a lightning rod because of his views on the subservience of women. In a 1997 article in a Catholic newspaper, Holmes wrote: "The wife is to subordinate herself to her husband" and "the woman is to place herself under the authority of the man." He has even dismissed the rape and incest exception with the preposterous claim that "the concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami."

But Senate Democrats had earlier used the threat of a filibuster to block the nomination of William G. Myers III, which The New York Times called "the starkest example yet during the Bush administration of the debate over whether someone who has spent a career vigorously advocating a particular ideological viewpoint is an appropriate candidate to be a federal judge." Myers, a lobbyist and lawyer for grazing and mining interests, and top official at the Department of the Interior, has demonstrated his contempt for environmental protection and trampled on the rights of Native Americans. Myers once wrote that federal land regulations were akin to King George's "tyrannical" rule over the colonies and could lead to a "modern-day revolution" in Western states. Moreover, the American Bar Association Standing Committee on the Federal Judiciary gave Myers its lowest passing rating. A bare majority of committee members found him qualified, and none found him well qualified for a seat on the Ninth Circuit.

Bush's pending judicial nominees also include Texas Supreme Court Justice Priscilla Owen, who voted to benefit Halliburton and Enron after taking campaign contributions from them. He also nominated California Supreme Court Justice Janice Rogers Brown, whose decisions have shown great hostility to affirmative action, the rights of workers, gays, senior citizens and the disabled, and to protecting children from lead poisoning. Two hundred-fifty law professors, including this writer, signed a letter to the Senate Judiciary Committee urging rejection of Brown's nomination.
The Alliance for Justice, which monitors Bush's nominations for federal judgeships, has set forth alternative criteria for evaluating the record of a judicial nominee: He or she should have demonstrated a commitment to protecting the rights of ordinary Americans, rather than placing the interests of the powerful over those of individual citizens; worked on behalf of the disadvantaged; shown a commitment to the progress made on civil rights, reproductive freedom, and individual liberties; or manifested a respect for the constitutional role Congress plays in promoting civil rights and health and safety protections and ensuring recourse when these rights are breached.

Many of George W. Bush's nominees fail to satisfy any of these requirements. He has sought out ideologues who meet a litmus test for pleasing his right-wing religious backers. If Bush is elected president in November, we can expect him to mold the federal judiciary - and probably the Supreme Court - in his own image. A frightening thought.

Marjorie Cohn, a professor at Thomas Jefferson School in San Diego, is executive vice president of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists.


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