The Leadership Conference on Civil and Human Rights

Table of Contents

• Introduction

Executive Branch

• Looking Forward to New Blood in Washington
• Interview with Bob Edgar

On the Hill

• The Americans With Disabilities Act, Act Two
• As Home Foreclosures Climb, Efforts to Help Troubled Homeowners Continue
• The Year in Judicial and Executive Nominations
• Advocating for Federal Leadership on Education
• Facing New Challenges with the 2010 Census
• Modernizing the Federal Poverty Measure
• Piecemeal Legislation, Raids Take Place of Immigration Overhaul
• Below the Surface
• Interview with Kathryn Kolbert

In the Courts

• Wrapping up the Supreme Court’s 2007-2008 Term

In the States

• Colorado: Battleground for More Than Just the Presidency.
• Interview with Lilly Ledbetter

Leadership Conference Activities

• Preventing a Digital TV Divide
• Examining the State of Fair Housing in the 21st Century
• Bringing Diverse Communities Together
• 32nd Annual Hubert H. Humphrey Civil Rights Award Dinner
• Interview with John Payton

The Year in Judicial and Executive Nominations

Paul Edenfield

As 2008 began, civil rights advocates feared that the Bush administration would continue its success in securing confirmation of controversial appointments, which had been capped last October by the confirmation of the controversial Leslie Southwick to the U.S. Court of Appeals for the Fifth Circuit. 

The U.S. Court of Appeals for the Fourth Circuit, a court that had been dominated by conservatives for years and had long demonstrated particular hostility toward the rights of minorities in spite of containing the largest African-American population of any of the circuits within its jurisdiction, posed special risk.  The five vacancies on that court offered the possibility of either a new direction for the court; or, if the current administration successfully appointed more of its ideological judges, a further retrenchment in civil rights. 

In 2008, President Bush continued his pattern of nominating individuals with troubling civil rights records to the Fourth Circuit and other courts.  However, redoubled efforts by civil rights groups to resist such nominees helped preserve the federal courts from further regression.

Fourth Circuit

Since the 1980s, the Fourth Circuit has earned a reputation for its hostility to civil rights claims – the result of many years of a deeply conservative majority of judges, including J. Harvie Wilkinson, Karen Williams, and Michael Luttig.  As documented by The New York Times in 1999, the circuit assertively sought to curtail important civil rights protections, including laws to ensure due process in criminal proceedings and constitutional standards empowering Congress to enact civil rights legislation.  The circuit, for example, struck down part of the Violence Against Women Act as outside Congress’ constitutional authority.  Maintaining the conservative majority on the Fourth Circuit appears to have been a goal of conservatives since President Clinton’s election in 1992. 

In mid- and late-2007, President Bush put forward several nominees for the five Fourth Circuit vacancies.  These included Steve Matthews to a South Carolina seat; Robert Conrad to a North Carolina seat, Rod Rosenstein to a Maryland seat, and E. Duncan Getchell to a Virginia seat.  In early 2008, he nominated G. Steven Agee to fill the second Virginia vacancy. 

The Getchell nomination was especially controversial because Virginia senators Warner and Webb had developed a bipartisan list of acceptable candidates for the Virginia vacancies on which Getchell’s name did not appear.  The senators exercised their prerogative as home-state senators to block this nomination.  Agee, who was on their list, was confirmed in May 2008.  President Bush also failed to consult with Maryland senators about the Rosenstein nomination, and that, too, was blocked.  Eventually the president withdrew the Getchell nomination and nominated another name from the Warner-Webb list, Glen Conrad. However, this occurred so late in the year that there are serious doubts as to whether the Senate Judiciary Committee will be able to review and process his nomination before the term ends.

Civil rights advocates had no home-state senators to champion their cause in North and South Carolina.  But they were successful in convincing the Senate Judiciary Committee not to process the Matthews and Conrad nominations, arguing that their records were simply not up to snuff for a circuit of such crucial importance to minorities.

Other Courts

In addition to the Fourth Circuit nomination fights, civil rights groups opposed a number of nominees to other circuits.

In Pennsylvania, they teamed up with employment lawyers and labor leaders to convince Pennsylvania Senator Bob Casey that Third Circuit Court of Appeals nominee Gene Pratter was too hostile to employment plaintiffs to be confirmed, and Sen. Casey used his home-state senator rights to block Pratter’s nomination.  Civil rights groups also opposed the nomination of Richard Honaker to the Wyoming district court because of a record suggesting he would allow his own views to trump legal precedent, and convinced the Senate Judiciary Committee not to process his nomination. 

Civil rights groups and labor unions also joined in reiterating their strong opposition to Peter Keisler, who was nominated to the D.C. Circuit Court of Appeals.  Keisler’s record, they said, failed to demonstrate that he would be a fair and independent voice the D.C. Circuit, a court second in importance only to the U.S. Supreme Court, given its jurisdiction over many matters relating to federal regulation of labor relations and other areas impacting the lives of working families. His nomination remains pending, but he is unlikely to be confirmed.

Executive Nominations

The nomination of Hans von Spakovsky to the Federal Election Commission, which civil rights advocates had worked hard to defeat for many months, due to von Spakovsky’s record of politicized decision making on voting rights matters while at the Department of Justice, was finally withdrawn.  The president and his allies had sought to package a vote on von Spakovsky with other FEC nominees whose appointments were necessary to allow the agency to have enough commissioners to function.  Senate Majority Leader Harry Reid, D. Nev., and others called the administration’s bluff and refused to vote on the nominations.  In May 2008, in a major triumph for civil rights and voting rights advocates, the von Spakovsky nomination was withdrawn.

The November 2007 nomination of Grace Chung Becker to be Assistant Attorney General for the Civil Rights Division brought skepticism from civil rights groups, which were concerned that her relative lack of experience made her ill-suited to tackling the profound dysfunction within the division.  Becker’s hearing in the Senate Judiciary Committee did little to allay concerns, and her nomination remains pending.

Paul Edenfield is counsel and policy analyst for the Leadership Conference on Civil Rights (LCCR) and specializes in workers’ rights, census, and judiciary issues.