FORUM
 JURIST >> OPINION >> Forum >> High Stakes

覧覧覧覧覧覧覧覧覧覧覧覧覧覧
HIGH STAKES IN NOVEMBER: GEORGE W. BUSH AND THE FUTURE FEDERAL JUDICIARY
Professor Marjorie Cohn
Thomas Jefferson School of Law
JURIST Contributing Editor

George W. Bush, while trying to convince skeptical conservative activists of his father痴 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: 笛esus Christ is my personal savior.

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

George W. Bush痴 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痴 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痴 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辰onnor, 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 杜ore 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痴 lower federal courts. Two of his nominees have made news recently for their advice on how Bush痴 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稚 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痴 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痴 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痴 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痴 nominee to the Fifth Circuit, was instrumental in the defeat of Pickering痴 nomination. Bush, however, circumvented the Senate痴 constitutional role in the selection of judges by appointing Pickering anyway during a Congressional recess.

Pickering痴 checkered past includes his article explaining how to strengthen Mississippi痴 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痴 constitutional right to reproductive choice. He called Roe v. Wade 鍍he worst abomination of constitutional law in our history.

But Pryor痴 contempt isn稚 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: 的t matters not to me whether or not [my actions protect children]. My job is to make sure the state of Alabama isn稚 run by [a] federal court.

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

Bush痴 recess appointments of Pickering and Pryor so incensed Democratic senators that they held up several of Bush痴 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 渡oncontroversial 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痴 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: 典he wife is to subordinate herself to her husband and 鍍he 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 鍍he 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 鍍he 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痴 鍍yrannical rule over the colonies and could lead to a 杜odern-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痴 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痴 nomination.

The Alliance for Justice, which monitors Bush痴 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痴 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 U.S. representative to the executive committee of the American Association of Jurists.

August 1, 2004

CONTRIBUTING EDITOR

JURIST Contributing Editor Marjorie Cohn is a professor at Thomas Jefferson School of Law in San Diego, where she teaches Criminal Law, Criminal Procedure, Evidence, and International Human Rights Law. A news consultant for CBS News and a commentator for Court TV, she has co-authored a book on cameras in the courtroom with former CBS News Correspondent David Dow. Professor Cohn has also published articles about criminal justice, international human rights, U.S. foreign policy and impeachment. She is executive vice president of the National Lawyers Guild, editor of the Guild Practitioner and is on the Roster of Experts of the Institute for Public Accuracy. A criminal defense attorney at the trial and appellate levels for many years, Professor Cohn was also staff counsel to the California Agricultural Labor Relations Board. She has lectured at regional, national and international conferences, and was a legal observer in Iran on behalf of the International Association of Democratic Lawyers.

Professor Cohn is a graduate of Stanford University and the Santa Clara University School of Law.