Federal Judicial Nominations
As of August 6, 2003, 145 of President Bush's nominees to the appellate and district courts had been confirmed and there were 52 vacancies (19 appellate and 33 district) in the federal courts.
Despite the fact that most of President Bush's original group of nominees has been confirmed by the Senate (with 100 of those judges confirmed during the time the Democrats controlled the Senate), Senate Republicans continued to insist that the President's nominees to the federal bench were being obstructed. Yet the Democrats have so far blocked full Senate consideration of just three of President Bush's judicial nominees-Miguel Estrada, Priscilla Owen, and William Pryor.
Miguel Estrada, nominated to the D.C. Circuit, was filibustered because of his unwillingness to answer Senate Judiciary Committee questions about his record and judicial philosophy on important civil rights issues. He was opposed by a variety of organizations, including the Congressional Hispanic Caucus and the Puerto Rican Legal Defense and Education Fund. The President withdrew his nomination on September 4, 2003, at Estrada’s request.
Priscilla Owen, whose nomination to the Fifth Circuit was rejected by the Senate Judiciary Committee last year and re-nominated for reconsideration this year, is being filibustered by Senate Democrats because of her record on workers’, civil, and women's rights while serving on the Texas Supreme Court, including an effort in one case that President Bush's own White House Counsel Alberto Gonzales, who was then a fellow Justice on the Texas Supreme Court, called "an unconscionable act of judicial activism."
William Pryor, nominated to the Eleventh Circuit, is being filibustered because of his record of hostility to important civil rights principles. As Alabama Attorney General, Pryor demonstrated a commitment to rolling back federal protections against discrimination based on race, gender, age, and disability.
(More information on these nominees may be found at www.SaveOurCourts.org.)
The Leadership Conference on Civil Rights has vigorously opposed several of the Bush administration's extremist nominees. Many of these nominees have already been confirmed; among the most controversial examples are:
Jeffrey Sutton, confirmed to the Sixth Circuit, has argued to restrict or eliminate federal protections against discrimination based on race, sex, age, and disability, going even further than the narrow 5-4 majority of the Supreme Court. In opposing Sutton's nomination, the Bazelon Center for Mental Health Law stated that he "has aggressively pursued a national role as the leading advocate for a group of far-right legal theorists attempting to limit Congress's power to protect individuals' civil rights. He has acknowledged that he is 'on the lookout' for cases where he can present this view."
Timothy Tymkovich, confirmed to the Tenth Circuit. The Alliance for Justice stated that "As Colorado's Solicitor General, Tymkovich represented the state of Colorado in the Supreme Court case of Romer v. Evans, arguing that an amendment to Colorado's constitution barring the state and municipalities from taking action to protect gays and lesbians from discrimination was permissible under the U.S. Constitution", a position that was rejected by the Supreme Court, which ruled the provision unconstitutional. The Alliance for Justice noted further that "After losing the case, Tymkovich wrote a stinging article… in which he sharply criticized the Supreme Court's decision, arguing that the amendment was enacted for the entirely permissible purpose of preventing gays and lesbians from receiving extra benefits from the government."
Jay Bybee, confirmed to the Ninth Circuit. The Alliance for Justice called Bybee "a staunch believer in states' rights who has shown hostility to civil rights, especially the equal protection rights of gays and lesbian. Bybee's arguments that Congress's powers should be limited have gone far further than any decision by the current conservative Supreme Court." The Alliance for Justice noted further that Bybee had compared the Supreme Court's ruling striking down the Colorado anti-gay provision to protecting the "illiterate" or "persons with communicable diseases."
Deborah Cook, confirmed to the Sixth Circuit, was opposed by a number of national and local organizations. With respect to the Cook nomination, the Alliance for Justice stated, "Justice Cook is also perceived by many as out of the mainstream on the court; she has authored well over 300 dissents, more than any other Justice in the eight years she has been on the court, and a large majority are dissents against injured workers, consumers, and other plaintiffs and in favor of big business interests."
Michael McConnell, confirmed to the Tenth Circuit. The National Women's Law Center (NWLC), among many others, urged the Senate to reject the nomination of McConnell "based on his record of hostility to fundamental constitutional and civil rights for women." The NWLC, after carefully reviewing McConnell's numerous published articles and statements, found McConnell "to have specifically rejected the validity of Roe v. Wade, and even questioned the right to privacy, core principles of sex discrimination and harassment law, and other fundamental constitutional and civil rights of particular importance to women."
Dennis Shedd, confirmed to the Fourth Circuit, had an eleven-year record on the federal district bench that reflects hostility towards plaintiffs in civil rights cases, including minorities, women and persons with disabilities, a desire to limit Congress's authority to enact protective legislation that is applicable to the states, and insensitivity to issues of race. The Alliance for Justice reported that "Judge Shedd has often refused to let a jury hear employment discrimination and other cases, instead deciding the case himself in favor of the employer, " and noted that "In criminal cases, Judge Shedd displays a willingness to condone constitutional violations by law enforcement officers," concluding that "Judge Shedd's record raises serious questions about competence and commitment to the role of the federal judiciary as guarantor of equal access to justice."
The following are among Bush's most controversial judicial nominees who are awaiting consideration by either the Judiciary Committee or the full Senate:
Charles Pickering, whose nomination to the Fifth Circuit was rejected by the Senate Judiciary Committee last year, was re-nominated by President Bush this year. Pickering has been accused of unethical onduct as a federal district judge for intervening with the prosecution in one of his cases to get them to reduce a sentence for a convicted cross-burner. He also contacted lawyers who appear before him to gain support for his nomination. In its report in opposition to Pickering's nomination, People For the American Way stated that Pickering "demonstrates insensitivity and hostility toward key principles protecting the civil and constitutional rights of minorities, women, and all Americans" and "has been reversed on a number of occasions by conservative appellate court judges for disregarding controlling precedent on constitutional rights and for improperly denying people access to the courts."
Carolyn Kuhl, nominee to the Ninth Circuit, is opposed by both home-state Senators Dianne Feinstein and Barbara Boxer. The Alliance for Justice reported that "As a member of the Reagan administration, Judge Kuhl was one of two Justice Department officials who persuaded the Attorney General to reverse an 11-year Internal Revenue Service policy and reinstate the tax-exempt status of Bob Jones University and other racially discriminatory schools" over the protests of more than 200 Justice Department lawyers. By an 8-1 vote, the Supreme Court rejected Kuhl's position and upheld the IRS denial of tax exempt status to Bob Jones University.
Terrence Boyle, nominee to the Fourth Circuit. The Alliance for Justice noted that "Judge Boyle twice decided that a Congressional district in North Carolina that was drawn to have a population that was about 50% African-American citizens violated the Constitution, and that "Both of Judge Boyle's decisions were reversed by the Supreme Court, the first time by a unanimous court, with Justice Thomas writing the opinion." A North Carolina district judge and former staffer to Senator Jesse Helms, Boyle also refused to accept a settlement of a sex discrimination claim against a state agency, even though the agency had agreed, and was reversed when he later allowed the state to withdraw from the settlement.