"It is, emphatically, the province and duty of the judicial department to say what the law is."
-- Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803)
The Role of the Federal Courts
Since the early days of our republic, the roles of our three branches of government have been clear: While Congress makes the laws and the President executes the laws, the courts interpret the laws, and thus have the last word on declaring what the laws mean. As we have seen over the last 200 years since Marbury v. Madison, the role of the interpreter is, in many ways, the most powerful. The men and women who sit on our nation's federal courts have the power to breathe life into the promise of our democracy. Far from being isolated interpreters of arcane aspects of our laws and Constitution, with one decision, federal judges can change how we work and live with one another — for better, or for worse.
Decisions by federal courts have changed the course of our country. At times, the courts have led the country toward a broader recognition of individual rights and liberties. For example, the Supreme Court's decision in Brown v. Board of Education, striking down racial segregation in public schools, was a watershed decision that led to the dismantling of a wide range of racist institutions and the promotion of a culture of equal rights.
At other times, the courts have stood in the way of progress, limiting rights and freedoms, such as when the Supreme Court, in University of Alabama Board of Trustees v. Garrett, struck down a provision of the Americans with Disabilities Act permitting a state employee to sue his or her employer and collect money damages for discrimination based on disability.
However, the power of the courts to change the course of our country is not limited to the Supreme Court. Because of the volume of cases that they hear and because of the extremely limited Supreme Court docket, the federal courts of appeal can have an even greater effect on the law than the Supreme Court. While the Supreme Court typically hears fewer than 100 cases a year, the federal courts of appeal, which are the courts immediately below the Supreme Court, decide almost 30,000 cases a year. Thus, for most people, the courts of appeal are the courts of last resort.
The Threats to an Independent Judiciary
Article II of the Constitution provides the President with the power to nominate federal judges, subject to the "advice and consent" of the Senate. In designing this structure for sharing power between the executive and legislative branches, the founders intended to ensure an independent federal judiciary. Such independence is critical, since federal judges receive lifetime appointments and are called upon to make important decisions affecting the interpretation and enforcement of the Constitution, federal civil rights laws, and other key protections. Because of this, civil rights advocates have long monitored the integrity of the processes for nominating and confirming judicial and other key federal appointments—insisting that such processes be fair, open, and balanced.
While battles over nominations to the Supreme Court go back to the founding of our nation, battles over nominees to the federal courts of appeal are fairly new. In recent years, the civil rights community has focused on the federal courts of appeal, which because they are often the final word, exercise enormous power in deciding cases that determine the rights of all Americans in such areas as civil rights, privacy rights, the rights of workers, and women's rights.
In the 1970s and early 1980s, in response to federal court decisions upholding civil rights, civil liberties, and privacy rights, right wing conservatives began to formulate their plan to re-shape our nation's legal landscape to better reflect their agenda. This process began with the creation of a number of policy think tanks and advocacy organizations including the Free Congress Foundation, the Family Research Council, the Eagle Forum, the Blackstone Institute, and the Federalist Society.
These and other organizations with similar missions now form the intellectual core of the conservative revolution that has reshaped our federal judiciary. In the 1980s and early 1990s, these groups and their allies, determined to shift the courts' philosophical balance to the right, found willing allies in the White House.
Today, through his judicial appointments, President George W. Bush is appeasing the far right wing of his party by packing the federal courts with the most conservative ideologues in our nation's legal community. Many of the men and women President Bush has nominated to the federal bench have built their careers at the ideological fringe of the law-calling for tax breaks for universities that practice racial discrimination, gutting Congress's power to pass civil rights laws, eliminating the role of the federal government to protect the rights of workers, and eliminating federal protections for the environment, among other things. Their views are out of the mainstream but consistent with the small band of ideological conservatives dominating the judicial selection process in the White House.
With lifetime appointments, these right-wing judges have the power to change the nation for decades to come.
The Judicial Nominations Battle-What's at Stake
The modern civil rights movement evolved through the struggles of men and women who rode for freedom, protested for improvement, and advocated for change in state and national legislatures. But, at every turn, the federal courts were present—in some cases, ensuring civil and constitutional rights and in others, turning back the hands of time.
The question now is not whether federal judges have the power and the ability to change the contours of our democracy. They clearly do. The question, rather, is whether the judges nominated by President Bush will use that power to further protect the rights of women, racial, ethnic, and religious minorities, individuals with disabilities, workers or consumers, or whether they will be a force for further roll-backs of important rights and liberties.
What is at stake in the fight over judicial nominations is the continued ability of Congress to protect our civil rights and fundamental freedoms: the right to be free from discrimination based on race, national origin, religion, gender, sexual orientation, or disability; the right to organize in a union and be protected by national labor standards; the right to clean air and water; and the right to equal opportunity in employment and education for all Americans. While many have fought for years for these rights, they are not secure without a federal judiciary ready to stand vigilant to protect them.
For example, over the past several years, some of our nation's most conservative courts of appeal, which have jurisdiction over regions of the country with very large minority populations, have not only limited the reach of affirmative action programs, but have put their very existence in jeopardy. Also, numerous courts of appeal have become increasingly hostile to claims of employment discrimination, including sexual harassment. These decisions significantly impact the economic and educational opportunities for thousands of women and minorities.
The decisions of federal appellate judges also have had a tremendous impact on the ability of workers to exercise their rights under laws providing critically important workplace protections. These include the right to the minimum wage and overtime compensation provided by the Fair Labor Standards Act; the right to unpaid leave for a serious illness of the worker or family member, or the birth or adoption of a child, provided by the Family and Medical Leave Act; the right to a safe workplace provided by the Occupational Safety and Health Act; the right to organize a union and bargain over terms and conditions of employment, provided by the National Labor Relations Act; and the right of workers with disabilities to fair treatment, including reasonable accommodations. All of these rights are in jeopardy.
Americans who care about civil rights, workers' rights, and consumer and environmental protections must wake up to the danger posed by allowing the radical right to control the Third Branch of government. They must demand that the Bush administration nominate and that their senators only confirm judges who are committed to protect our basic rights and freedoms.
They must ask, for example, whether Judge Charles Pickering, who received a recess appointment to the Fifth Circuit in January 2004, will continue the work of great jurists like Elbert Tuttle, John Minor Wisdom, and Frank Johnson who ensured the success of desegregation in the South after Brown v. Board of Education, or will he diminish the law and the Constitution like Chief Justice Taney in Dred Scott v. Sanford, when he wrote for the Court in 1857 that no Black person, free or slave, could be a "citizen" of a state or of the United States.
Will Jeffrey Sutton, recently confirmed to the Sixth Circuit, protect the rights of individuals with disabilities, given that he was the chief architect of the plan to dismantle the Americans with Disabilities Act? Many pending Bush nominees, such as Alabama Attorney General William Pryor (who, while not confirmed, received a recess appointment in February 2004), share Judge Sutton's view of the Constitution, which places other federal civil rights laws in jeopardy.
President Bush's nominees to the D.C. Circuit will shape labor and environmental law, as well as immigration, consumer protection, and civil rights laws for decades. The Senate must decide if it will confirm a jurist-like California Supreme Court Justice Janice Rogers Brown—who has commented that America has become "a nation of whiners" and that policy makers are "handing out new rights like lollipops in the dentist's office." It must also decide whether Ken Starr protégé Brett Kavanaugh can divorce his political views from sound legal reasoning.
The White House and the Senate have an important role to play in the process that determines whether judicial nominees like Pickering, Brown, Kavanaugh, and others will be confirmed. On questions of civil rights, women's rights, labor and environmental law, they will be the final arbiters of justice. All who appear before them and are affected by their decisions must also believe in their impartiality and respect the process that led to their confirmation.
Much of the right wing effort to capture the courts is happening outside of public view. While most people know about the role of the Supreme Court and the importance of a Supreme Court nomination, far fewer pay attention to the lower federal courts. This report, part of a longer term effort of the Leadership Conference on Civil Rights and the Leadership Conference on Civil Rights Education Fund to monitor the federal judicial nominations that affect the state of civil rights in America, chronicles the battle over judicial nominations; the right wing's decades-long effort to capture the federal courts, the law, and the Constitution; and the implications for the civil and human rights agenda in 2004 and beyond.
