Civil Rights Monitor
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The CIVIL RIGHTS MONITOR is a quarterly publication that reports on civil rights issues pending before the three branches of government. The Monitor also provides a historical context within which to assess current civil rights issues. Back issues of the Monitor are available through this site. Browse or search the archives
Federal Judicial Nominations The battle over judicial nominations that began during President Bush's first term continued, as he re-nominated, on February 14, several highly controversial nominees that the Senate had previously rejected.
Dozens of civil rights and social justice organizations expressed their disappointment at what they said was the president's disrespect toward the judicial nominations process, which the Constitution explicitly states is a duty of the Senate.
"These judges were unfit for the federal bench when President Bush first nominated them and they are still unfit today," LCCR Executive Director Wade Henderson said in response to the re-nominations.
Advocates for a fair judiciary opposed several of the re-nominated picks due to their records, which threatened to roll back critical rights and protections for Americans, including civil rights and liberties, workplace safety, clean air and safe water, privacy, and equality for all Americans.
"Despite what the President would like us to believe, these nominees are not moderate, fair-minded judges who have the letter of the law and our best interests at heart," Henderson said. "They are part of a bigger Bush agenda: a move to pack our courts with out-of-the-mainstream judges who are driven by ideology - not the law."
The following candidates were re-nominated to the United States Court of Appeals: Priscilla Owen to the Fifth Circuit; William Myers III to the Ninth Circuit; William Haynes and Terrence Boyle to the Fourth Circuit; David McKeague, Richard Griffin, and Henry Saad to the Sixth Circuit; and Janice Rogers Brown, Thomas Griffith, and Brett Kavanaugh to the D.C. Circuit.
President Bush also re-nominated William Pryor to the Eleventh Circuit. Pryor made headlines last year when he was recess appointed after Senate leadership failed to muster enough votes for his confirmation.
The Nuclear Option
The re-nomination of the highly controversial nominees was accompanied by the proposal of a maneuver to end filibusters, dubbed the "nuclear option." In trying to invoke the nuclear option for judicial nominations, Republicans would bypass 200-year old Senate rules that allow filibustering by asking for a ruling from the Senate's presiding officer—Vice President Dick Cheney—that any filibuster was "out of order." Only 51 votes would be needed to uphold the ruling, as opposed to the 60 votes needed to end a filibuster.
Opponents of the nuclear option pointed out that more than 200 of President Bush's judicial nominees—or more than 95 percent—had already been confirmed, and that Democrats had blocked just seven of the most extreme nominees.
LCCR also warned that the nuclear option put decades of civil rights progress at risk, by eliminating the ability of senators to stop the confirmation of federal judges with records hostile to important civil rights protections.
The Senate moved one step closer to a "nuclear showdown" in late April, when two of President Bush's most controversial nominees, Janice Rogers Brown and Priscilla Owen, were voted out of the Senate Judiciary Committee on a party line vote.
Following this, many believed that Senate Majority Leaders Bill Frist, R.Tenn., would invoke the nuclear option using Democratic opposition to Rogers Brown and Owen as the "trigger"-a move that Frist confirmed when he announced in mid-May that he was bringing the two nominations to the Senate floor.
No Nukes in the Senate
On May 23, a bipartisan group of senators reached a last-minute deal, averting a nuclear showdown in the Senate.
The deal reached by senators took the nuclear option off the table, but allowed some of President Bush's most extreme judicial nominees—Rogers Brown, Owen, and William Pryor—to move forward.
While pleased that the nuclear option had been rejected, LCCR's Henderson expressed disappointment with the decision to move forward with the three extremist nominees.
"Thankfully, the Republican leadership's strategy for creating a fully compliant Senate has failed. Cooler Senate heads must now preserve the independence of the judiciary. And while the battle over the Supreme Court looms on the horizon, we are hopeful that going forward President Bush recognizes, as his predecessors have, that America prefers nominees who are in, not outside, the mainstream," Henderson said.
The deal was viewed as a victory for the balance of power between Congress and the White House.
Calling for "consultation and consensus," Ralph Neas, president of People for the American Way, said, "It is time for President Bush to recognize what the senators who negotiated this agreement know—that the Senate is the President's constitutional partner in appointing federal judges. It is time for the White House to abandon its confrontational strategy on judges, and to work with senators from both parties to find some consensus nominees, especially in the case of expected Supreme Court vacancies."
Henderson added that "LCCR and its allies will fight for every single vote in the Senate to oppose the President's flawed nominees."
Of Rogers Brown, LCCR said, "Not only does she show an inability to dispassionately review cases, but her opinions are based on her extremist ideology and ignore judicial precedent, even that set by the United States Supreme Court."
LCCR called Owen's views "far outside the mainstream of judicial thought, even by the standards of the very conservative Texas Supreme Court."
Opponents to Pryor's nomination maintained that he was one of the architects of the so-called "states' rights" movement that seeks to limit the power of Congress to enact legislation that protects civil and constitutional rights.
But despite strong opposition, Owen (56-43), Rogers Brown (56-43) and Pryor (53-45, with three Republicans voting against confirmation, a first for a Bush appellate nominee) were all confirmed to seats on the federal bench.
In mid-June, Thomas Griffith joined Rogers Brown on the D.C. Circuit, marking the second time in as many weeks that a controversial nominee was appointed to what has been called the second most important court in the nation.
Opponents to Griffith's confirmation had pointed to his attempts to roll back Title IX, which bars sex discrimination by educational institutions that receive federal funding.
Opponents also called him "unfit" to serve because he had violated his profession's rules by practicing law for several years in Washington, D.C. and Utah without a license.
"Griffith's failure to comply with professional licensing rules, coupled with his antagonism toward Title IX protections, reflects a profound lack of respect for the law that does not bode well for petitioners in a court one step away from the U.S. Supreme Court. The confirmation of Thomas Griffith sends a dangerous wrong message," said Debra L. Ness, President, National Partnership for Women & Families.
  
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