JUDGMENT DAY

Crisis, The, Jul/Aug 2005 by Ruffin, David C

The Fight for the Soul of the Federal Judiciary

The Congressional Black Caucus (CBC) called California Supreme CourtJustice Janice Rogers Brown a "notoriously conservative lawyer" who "is unfit to serve on the second most powerful court in the country." Nevertheless, Brown, who is African American, was confirmed by the U.S. Senate for a judgeship on the Circuit Court of Appeals for the District of Columbia on June 8. Over the strong objections of Senate Democrats and civil rights organizations, Brown and two other conservative judicial nominees - Priscilla Owen, for the Fifth Circuit Court, and William H. Pryor Jr., for the Eleventh Circuit Court - were narrowly approved in quick succession.

In a rare show of unified opposition against presidential nominations, virtually all Democratic senators voted against them - each received 43 or more "Nays" - and a few Republicans also said "No." Most of President Bush's prior circuit court nominees were confirmed by voice vote or received only one or two nay votes. The ongoing war over the confirmation of conservatives nominated for federal judgeships by President Bush has been so confrontational it nearly shut down the Senate. During Bush's first term, Senate Democrats used the filibuster (extended floor debate) to block the confirmations of Brown, Owen, Pryor and seven other nominees.

While the general public has been less engaged in the long-term struggle to determine the composition of federal courts, to legislators on Capitol Hill from both parties, the issue is as important as a presidential election or gaining a majority in Congress. For some, it's even more important because with life terms, how federal judges interpret the Constitution will shape the way courts rule on issues involving civil rights and civil liberties, air and water pollution, workplace safety, privacy issues, reproductive choice, religious freedom and corporate power for decades to come.

Bush's opponents charge that he is threatening the independence of the federal judiciary by packing the courts with ultraconservative ideologues. The fight over lower court judges, however, is expected to pale in comparison with the coming struggle over the confirmation of Supreme Court justices.

Philosophical Balance

The battle lines in the war over judges have been clearly marked between Democrats and Republicans in the Senate. The Democrats are committed to opposing future judicial nominees they believe to be outside the mainstream of American judicial thought. They claim the right under the Constitution to filibuster the nominations they perceive to be not in the best interests of the nation. Article II, Section 2 of the Constitution says the president shall appoint judges "by and with the Advice and Consent of the Senate."

Democrats are joined in this fight by a coalition of organizations that advocate for civil rights, women's rights, labor rights and preserving the environment.

"There has been a focused effort by conservatives to change the ideological balance of the federal bench for the last 25 years," says Theodore M. Shaw, director-counsel and president of the NAACP Legal Defense and Educational Fund. "This has serious implications for ordinary people who depend on laws to protect them from employment discrimination and guaranteeing a woman's right to choose. They are most heavily burdened by laws that permit minors to get the death penalty and allow police to stop and search people with little or no probable cause."

Democrats blocked confirmation for 10 of Bush's judicial nominations during his first term, but the Senate approved 204 judges that Bush sent to Capitol Hill and several more in the current 109th Congress. Although the Democrats have said "Yes" to 97 percent of those Bush named for federal judgeships, Republicans have condemned Democratic senators' efforts to deny any of his nominees up or down votes on the Senate floor as "obstructionist."

Allied with Bush and Senate Republican leaders on the other side of the judges fight are big business, the religious right, influential Washington think tanks and groups like the Federalist Society, made up of conservative lawyers and jurists.

C. Boyden Gray, former White House Counsel for President George H.W. Bush and chairman of the Committee for Justice, says, "The Constitution grants the Executive primary power over judicial appointments, while granting the Senate, as a body - not partisan factions within it - a check via majority vote."

Gray heads a coalition of groups dedicated to placing conservatives on federal courts. The Committee for Justice is committed to "promoting constitutionalist judicial nominees." Days before the fight over judges reached a crisis point in the Senate, Bush said, "I urge the Senate to put aside the partisan practices of the past and work together to ensure that all nominees are treated fairly and that all Americans receive timely justice in our Federal courts."

Those exact words could have been said by President Bill Clinton five years ago. Congressional Republicans used the power of the majority to hold up 60 of Clinton's nominees. Of those 60, only one ever made it out of the Judiciary Committee to be taken up on the Senate floor for an up or down confirmation vote.