The Leadership Conference on Civil and Human Rights

During his presidential campaign, candidate George W. Bush made clear that, if elected, he would nominate judges to the federal bench in the mold of the Supreme Court's most extreme ideologically conservative justices—Antonin Scalia and Clarence Thomas.  And President Bush kept his word.   Rather than looking to the ideological middle for picks to the federal courts—as would have seemed appropriate after President Bush's narrow victory in the 2000 election and loss of the popular vote, reflecting a very divided electorate—President Bush instead reached deep into the ideological extreme of his party, nominating men and women with records of hostility toward the rights of racial and ethnic minorities, women, workers, consumers, individuals with disabilities, and many others.  

After taking office, President Bush immediately began taking advantage of the judicial vacancies created by the Republican blockade of Clinton nominees.  The administration put in place an ideology-based conservative judicial selection team and potential nominees were moved quickly through the screening process.  

Ideology is what is driving President Bush to nominate the lion's share of his picks to the federal courts and ideology is the basis for the strong objections that are coming from the civil rights community and their allies in the Senate.  Many of President Bush's nominees to the federal courts of appeal are from the far right extreme of the conservative movement.  They are the intellectual leaders of efforts to scale back Congress's authority to legislate on civil rights.  They are senior officers in the ultra-conservative Federalist Society.  They are lower court judges with records hostile to equal opportunity.  They are political operatives from the Whitewater and Monica Lewinsky investigations.  They are former staffers of ultra-conservative members of Congress.  President Bush, far from selecting the most respected lawyers from various fields, has focused his appointments on rewarding ideologues, pols, and operatives.

Changing the Rules

After the 2002 elections, Republicans regained a majority in the Senate, and Senator Hatch became Chairman of the Judiciary Committee once again.  Senate Republicans were clear that they were going to confirm Bush's nominations by any means necessary. By late January 2003, the Committee began moving nominees through the confirmation process at a pace that made any effort to scrutinize their individual records impossible.

In the first 10 months of 2003, Chairman Hatch held 19 hearings—a sharp increase compared to the seven hearings he held as Judiciary Chair during the Clinton administration in 1999 and the eight hearings he held in 2000.  In addition, Chairman Hatch imposed a new blue slip policy designed to limit the longstanding ability of home-state Senators to delay or deny Committee process for objectionable nominees. Unbridled by his past practices and policies, Hatch announced that blue slips would not play a role in the confirmation of circuit court nominees—those nominations belonged solely to the President.  With regard to district court nominees, a negative blue slip—even two negative blue slips—would be taken into consideration but would not be dispositive.  Thus, Senator Hatch made it clear that he retained the authority to schedule a nominee for a hearing regardless of the status of the blue slips from home state Senators.

In addition, Chairman Hatch ignored longstanding committee rules in order to make sure that President Bush's nominees were approved.  Since 1979, the Judiciary Committee Rules have included a provision to protect the rights of the minority party.  Rule IV requires the acquiescence of at least one member of the minority party before debate on a matter—legislation or nomination—could be brought to a close.  The rule remained in effect for 24 years, under the chairmanships of Republicans and Democrats alike.  In fact, in 1997, Senator Hatch argued that Rule IV precluded the Committee from ending debate and voting on the nomination of Bill Lann Lee, then President Clinton's nominee to serve as Assistant Attorney General for Civil Rights at the Justice Department.

Though rarely used, Rule IV prevented the exercise of raw political power—until February 27, 2003.  Prior to the Committee's February 27th executive business meeting, every Democrat on the Judiciary Committee asked Senator Hatch to hold a second hearing for Sixth Circuit nominee Deborah Cook and D.C. Circuit nominee John Roberts.  Both were present at a January 29, 2003 hearing, but because the hearing included three controversial nominees, the Democratic members of the Committee were not able to appropriately question each of them.  When Chairman Hatch refused to schedule another hearing and instead scheduled the nominees for a Committee vote, no Democrat was prepared to agree to vote on either Deborah Cook or John Roberts, nominees for whom they had additional questions.  In response, Senator Hatch unilaterally decided to ignore Rule IV and proceed to a vote.

The Democrats Respond

In light of the lack of consultation and the erosion of long-standing Committee rules that would give voice to the Democratic minority, Senate Democrats began to use the one tool left in their arsenal to stop the confirmation of President Bush's most extreme nominees—the filibuster.  Over the next year, Senate Democrats, usually joined by Independent Vermont Senator James Jeffords, successfully blocked the confirmation of six of Bush's most extreme nominees, including:

• Miguel Estrada, who refused to adequately answer numerous questions posed to him at his Judiciary Committee hearing and failed to demonstrate a commitment to the continued vigorous enforcement of critical constitutional and statutory rights in the areas of civil rights and civil liberties;

• Priscilla Owen, whose record on the Texas Supreme Court reveals her to be an extremely conservative judicial activist, including in one case trying to make it much harder for workers to prove discrimination in firing, contradicting what the majority called the "plain meaning" of the state anti—bias law;

• William Pryor, an ultra-conservative legal activist who has been one of the leading proponents of reviving states' rights at the expense of federal civil rights protections;

• Charles Pickering, who has a longstanding and demonstrated lack of commitment to the cause of civil rights and equal opportunity;

• Carolyn Kuhl, who, among other things, advocated for a reinstatement of tax exempt status for a racially discriminatory university; and

• Janice Rogers Brown, whose record as a California Supreme Court justice demonstrates a strong, persistent, and disturbing hostility toward affirmative action, civil rights, the rights of individuals with disabilities, workers' rights, and the fairness in the criminal justice system.

Miguel Estrada: Nominee to the D.C. Circuit

Miguel Estrada's record and his testimony before the Senate Judiciary Committee provided little information for those who wanted to appropriately scrutinize his record.  A former Supreme Court clerk and lawyer in the Solicitor General's office, Estrada refused to provide candid answers to questions during his hearing or in writing to the Judiciary Committee.  The Department of Justice also refused to provide Judiciary Democrats memoranda written by Estrada when he served in the Solicitor General's office, although similar memoranda have been provided to the Committee in the past.

Without a complete hearing record or the memoranda, Senators had very little on which to judge the nominee's fitness to serve on the D.C. Circuit.  All acknowledged his academic and career achievements, but serious questions remained unanswered,and red flags were everywhere.

For example, Estrada's direct supervisor in the Office of the Solicitor General raised questions about his temperament and his ability to separate his legal analysis from his ideological views.  The few cases that were the focus of Estrada's activities while he was in private practice raised similar issues.  Concerns about Estrada's record and the lack of more detailed testimony from him on his judicial philosophy caused numerous national civil rights groups, including many of the leading Hispanic groups, to oppose his confirmation. The Congressional Hispanic Caucus, the Mexican American Legal Defense and Educational Fund, the Puerto Rican Legal Defense Fund, and the National Association of Latino Elected and Appointed Officials, were among the many groups that opposed or expressed concerns about his nomination.

Hearing the issues raised by Senate Democrats and the growing concern and opposition in the Latino community, conservatives littered the Senate floor debate and the media with accusations that Democrats were hostile toward Estrada because he was Hispanic, but not liberal.  Republican Senators accused Democrats of being "anti-Hispanic conservative." In a column for National Review Online, Robert Alt accused Democrats of opposing Estrada because he could not be counted on to write what Democrats deem to be "Hispanic decisions."  Writing for conservative media watchdog ChronWatch, columnist Leo Lacayo asserts, "The Democrats have become the party of the true profilers . . . ."

Conservative attempts to make these accusations stick were met with a strong rebuke from the League of United Latin American Citizens (LULAC)—an organization opposing the filibuster of the Estrada nomination.  National President Hector Flores was quoted in the Columbus Post in March 2003 expressing alarm at suggestions that Senate Democrats and Hispanic Caucus members were opposing Estrada's confirmation because of his ethnicity.  "We do not subscribe to this view at all and we do not wish to be associated with such accusations." ¹⁷

Democrats continued to oppose the Estrada nomination in the face of extraordinary political pressure and through seven cloture votes.  Estrada withdrew his nomination from consideration on September 4, 2003.

Priscilla Owen: Nominee to the Fifth Circuit

Justice Priscilla Owen is considered to be among the most conservative justices on the Texas Supreme Court, a conservative court by any measure. She is also the second most frequent dissenter currently serving on the court. A review of her decisions on that court reveals that Justice Owen is a conservative judicial activist with a willingness to rewrite the law whole cloth in order to achieve a particular result.

A broad coalition of Texas-based organizations that represent the most vulnerable populations has monitored Justice Owen's work on the state supreme court for years. They argue that she favors the government and powerful corporations at the expense of Texas men, women, and children.

Even more startling was the statement of White House Counsel Alberto Gonzales, who served with Justice Owen on the Texas Supreme Court.  While serving on the court, Gonzales said that Justice Owen's interpretation of the Texas parental notification statute would amount to "an unconscionable act of judicial activism."

William Pryor: Nominee to the Eleventh Circuit

Alabama Attorney General William Pryor is one of President Bush's most controversial and conservative nominees.  Rated by some on the ABA review panel as "unqualified" to serve on the appellate court, he has expressed hostility toward the Americans with Disabilities Act, the Violence Against Women Act, the Age Discrimination in Employment Act, and Title VII of the Civil Rights Act of 1964.  He is one of the driving forces behind the "new federalism"—a theory advanced by conservative activists determined to shrink Congress' authority to pass legislation protecting civil rights.

Ignoring Pryor's extreme legal views, Senate Republicans and other conservatives began asserting that Democrats opposed Pryor because he is a Catholic.  In October 2002, Judiciary Committee Chairman Hatch told the Christian Coalition "Democrats are voting down judges based on their religious views."

Charles Pickering: Nominee to the Fifth Circuit

District Court Judge Charles Pickering, Sr. is the last judicial nominee Democratic Senators would have chosen to oppose.  A long-time friend of powerful Republican Senator Trent Lott, Democrats and Republicans understood that opposing Pickering would be a direct attack on Lott, who was the Republican Leader.

Accordingly, few expected Pickering's nomination to fail, but an early review of Judge Pickering's record raised red flags that could not be ignored.  First, it was discovered that Judge Pickering had not published a considerable number of his district court opinions.  This fact became known just before Judge Pickering's October 2001 hearing and led Democratic Senators to believe that a second hearing might be necessary.  A second hearing would give Judge Pickering a chance to share his unpublished opinions with the Committee and an opportunity to answer outstanding questions once Senators had an opportunity to review them.

Judge Pickering's second hearing was held on February 7, 2002.  Many questions were focused on the significant number of times his decisions had been overturned by the Fifth Circuit, his seeming disdain for judicial precedent, his extraordinary efforts to engage in ex parte conversations with federal prosecutors in order to reduce the sentence of a defendant accused of a cross-burning, ethical concerns regarding Judge Pickering's efforts to solicit letters of support from lawyers who appeared before him on the district court, and documentation that conflicted with his testimony that he did not have a relationship with the Mississippi Sovereignty Commission.

Judiciary Democrats also were aware that local and national civil rights and legal organizations opposed Judge Pickering's nomination, including every chapter of the NAACP in Mississippi, the national NAACP, the Magnolia Bar Association (Mississippi's African American Bar Association), and a broad list of civil rights organizations.

Carolyn Kuhl: Nominee to the Ninth Circuit

Carolyn Kuhl, nominated by President Bush to the Ninth Circuit, was one of three Reagan Justice Department officials who persuaded the Attorney General to reverse prior policy and support the granting of tax-exempt status to Bob Jones University, despite its racially discriminatory policies.  More than 200 Justice Department lawyers, the Solicitor General, and the Treasury Department General Counsel objected to the change of position for which Kuhl advocated. According to The New York Times (May 1983), Kuhl was one of three characterized as a "band of young zealots" who urged the change in policy.  By an 8 to1 vote, the Supreme Court rejected Kuhl's position and upheld the IRS denial of tax—exempt status to Bob Jones University.

In addition, Kuhl worked to urge the Supreme Court to overrule its precedent on "associational standing." In International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Brock,¹⁸   Kuhl not only argued that the requirement for associational standing had not been met in the particular case, but went on to urge the Supreme Court to overturn the doctrine of associational standing altogether, except in the most extraordinary circumstances.  This view, if adopted, would have had a catastrophic effect on the ability of civil rights and other groups to file lawsuits on behalf of their members in order to vindicate their legal rights.

While at the Justice Department, Kuhl was also involved in a troubling effort to limit the reach of sexual harassment doctrine.  As Deputy Solicitor General, she co-authored an amicus curiae brief in the landmark sexual harassment case of >Meritor Savings Bank v. Vinson,¹⁹   asserting a position on sexual harassment which, had it been adopted, would have made it more difficult for women to prove sexual harassment in the workplace.  In a unanimous opinion authored by then-Justice William Rehnquist, the Court rejected as incorrect the focus in Kuhl's brief on the "voluntariness" of the alleged sexual conduct, instead making clear that the test is whether the sexual conduct was "unwelcome."

Janice Rogers Brown: Nominee to the D.C. Circuit

Janice Rogers Brown, a Justice on the California Supreme Court and nominee to the D.C. Circuit, has demonstrated a strong, persistent, and disturbing hostility toward affirmative action, civil rights, the rights of people with disabilities, workers' rights, and criminal rights.  Not only is she often the lone dissent on her court, but she also frequently ignores precedent set by the U.S. Supreme Court.

For example, her majority opinion in Hi-Voltage Wire Works v. City of San Jose,²⁰  made it practically impossible for California to have any kind of meaningful affirmative action program. In Aguilar v. Avis Rent A Car,²¹ Justice Brown argued in her dissent that the First Amendment protects the use of racial slurs in the workplace, even when it becomes illegal race discrimination.  Her opinion also went so far as to suggest that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination, violates the First Amendment and is therefore unconstitutional. On several occasions, Brown argued in her dissents to seriously limit the options for recourse available to victims of housing discrimination and to people with disabilities who had been discriminated against in their workplace

Other Extremist Candidates: Sutton, McConnell, Shedd, and Cook

While a number of President Bush's most extreme nominees to the federal appellate courts have been successfully filibustered in the Senate, several already have been confirmed.

Jeffrey Sutton, now a judge on the Sixth Circuit, is the country's leading activist in the so-called "states' rights" movement, which aims to erode Congress's power to protect Americans against discrimination based on race, age, disability, and religion.  Sutton personally argued key Supreme Court cases that, by narrow 5 to 4 majorities, have pushed the law in that direction.  Sutton was Alabama Attorney General William Pryor's lawyer in many of the anti—civil rights cases brought by the state of Alabama in the late 1990s.

Another was Michael McConnell, now a judge on the Tenth Circuit. During his many years as an academic and zealous conservative activist, McConnell was one of the leading conservative voices in support of efforts to limit congressional authority to protect civil rights and weakening both statutory and constitutional protections against discrimination based on race, gender and sexual orientation.  McConnell had even gone so far as to criticize a 1983 Supreme Court decision that denied tax-exempt status to Bob Jones University, which bans interracial dating by its students.

Dennis Shedd, a former staffer for then-Senator Thurmond, was another of the early batch of nominees.  Shedd, now a judge on the Fourth Circuit, the federal circuit with the highest percentage of African American residents in the country, had a federal district court record demonstrating hostility toward plaintiffs in civil rights cases, including minorities, women, and individuals with disabilities. As a trial court judge, Shedd ruled against every employment discrimination plaintiff who appeared before him, and made racially—insensitive remarks when he rejected a suit to remove the Confederate flag from the South Carolina Statehouse.

Deborah Cook, who was recently confirmed to the Sixth Circuit, has a record as a state supreme court justice from Ohio that includes numerous dissents that reflect a reluctance to support enforcement of a number of legal and constitutional rights, particularly those affecting workers and consumers.

Challenging the Filibuster

In response to the successful effort to block the confirmations of Priscilla Owen and Miguel Estrada, Senate Majority Leader Frist proposed to change the Senate Rules to permit 51 Senators—instead of 60—to end debate on a judicial nomination pending on the Senate floor.  Because this change would dramatically alter long-standing Senate rules, drastically shifting the balance of power in the Senate and signaling a complete breakdown of the rule of law in the Senate, members referred to this proposal colloquially as the "nuclear option."

Conservatives argued that the Democrats' use of the filibuster to prevent the confirmation of six Bush nominees (while confirming 168) constituted a constitutional crisis.  Neither the Constitution nor historical record supports this argument.  The Constitution grants Senators a co-equal role in the judicial confirmation process, and once the Senate receives a nomination, the nomination—like legislation—is subject to the Senate rules.

History and Senate practice also undermine the conservatives' rationale for changing the Senate rules. Cloture votes are routine in the Senate today, and have occurred on judicial nominations in numerous instances in the past few decades—on judicial nominations submitted to the Senate by Presidents of both parties, including nominations to the Supreme Court as well as lower federal courts.

As then-Senator Bob Smith, R-N.H., explained in a March 2000 press release to describe his support for a filibuster to prevent the confirmation of two Clinton appointees—Marcia Berzon and Richard Paez—filibusters of judicial nominees are routine and "have been based at least in part on concerns about the ideology or judicial philosophy of the nominee, or objections to the nomination process, or both." ²²    In his press release, Senator Smith even bragged that he "led the fight on the Senate floor to block the nominations of two activist Clinton judicial nominees…[and] led a filibuster yesterday on the nomination of Richard A. Paez and Marsha Berzon to the 9th Circuit Court of Appeals." ²³

In 1994, when other Senators were attempting to filibuster the nomination of H. Lee Sarokin to the Third Circuit, Judiciary Committee Chairman Hatch commented that the filibuster is "one of the few tools that the minority has to protect itself and those the minority represents."²⁴   Hatch, despite his current view that filibusters of judicial nominations are out of bounds, also supported the filibusters of Clinton nominees Berzon and Paez in 1999.

Recess Appointments

The Bush administration's actions to ensure that far right ideological conservatives are on the federal bench have been unprecedented.  In early 2004, President Bush took the extraordinary step of giving recess appointments to two of his most controversial nominees, both of whom had been defeated by filibusters in the Senate—Charles Pickering to the Fifth Circuit and William Pryor to the Eleventh Circuit.  The President's actions showed contempt for the Senate's advice and consent role, and are sure to escalate the bad will between the administration and the Senate on this issue.

The appointment of William Pryor also may have been unconstitutional.  While the recess appointment of Charles Pickering took place during the "intersession" (i.e. between the two sessions of the 108th Congress), the recess appointment of William Pryor was made during a relatively short intra-session recess. According to several Attorney General opinions on this question, recess appointments cannot properly be made under such circumstances.