President Bush’s first list of nominees to the US Circuit Courts of Appeal, unveiled on May 8, was deceptively conciliatory and seeded with hard-to-oppose minorities and women, stealth conservatives and even a Clinton holdover, Roger Gregory, who has been sitting temporarily on the Fourth Circuit during the stalled appointments process. Gregory, a black lawyer, was a bone tossed to the left, but Bush’s list contains enough red-meat conservatives to please his loyal base. Republicans already control eight of the thirteen courts of appeal and could dominate three more if Bush is permitted to fill even some of the current thirty-one vacancies. On the Fourth Circuit, where Republican judges now hold a 7-to-6 majority, and the Fifth, where they maintain a 9-to-5 edge, there are five and three vacancies, respectively.
For the Fourth Circuit, the farthest right of them all, Bush named two judges who should have no problem fitting in. Terrence William Boyle, a federal district judge in North Carolina and former aide to Jesse Helms, is so off the charts that in a recent voting rights case, Hunt v. Cromartie, the Supreme Court slapped him down two times in a row for ruling in favor of white voters trying to weaken black Congressional districts. The other Fourth Circuit nominee, Dennis Shedd, a federal judge in South Carolina, was a top aide to Senator Strom Thurmond. Both men have the support of Jesse Helms, who blocked all Clinton’s North Carolina nominees to the Fourth Circuit on the ground that it didn’t need any more judges. On the contrary, as a result of Republican obstructionism the federal courts have 100 vacancies and a backlog of 50,000 civil and 48,000 criminal cases at the district level. Now the brakes are off, and the GOP is rushing to pack the Fourth Circuit so it will remain a conservative bastion for years to come.
Two other Bush first-round nominees to the District of Columbia Circuit Court, Miguel Estrada and John Roberts, could shore up the GOP dominance of that body. Estrada is a Honduran immigrant who attended Harvard Law School. At age 39 he’ll sit on a circuit with a tradition of promotion to the Supreme Court. Now a partner at Gibson, Dunn & Crutcher, he has left few footprints on the public record, but he’s considered an Antonin Scalia clone. Roberts, a Washington lawyer, represents Toyota in a case challenging the Americans With Disabilities Act.
Among the women on Bush’s list, Edith Clement, a federal judge in Louisiana and a member of the conservative Federalist Society, will add little diversity to the conservative Fifth Circuit. Defense lawyers consider her a hanging judge who always sides with prosecutors. And she has a record of “judicial junketeering”–accepting trips from conservative foundations and corporations that purvey a free-market economic philosophy.
For the Sixth Circuit, Bush nominated Jeffrey Sutton, also an active member of the Federalist Society, whose influence permeates the Administration’s panel of judge-pickers. Sutton is a leader in the states’ rights campaign and successfully argued a recent Supreme Court case that took away the right of disabled workers to sue state governments for discrimination.
The religious right will have a friend on the Tenth Circuit bench if the nomination of Michael McConnell, a University of Chicago-trained professor at the University of Utah College of Law, goes through. McConnell has argued pro-school prayer briefs before the Supreme Court and is antichoice.
The circuit courts are a crucial battleground in the Administration strategy of entrenching conservative policies in this country. As the Rehnquist Court steadily pares its docket–last year it issued only seventy-four signed opinions, compared with 107 in 1991-92–the circuit courts have become mini-Supremes, final arbiters on many important, enduring issues in their districts. Take the Fifth Circuit’s drastic restriction of affirmative action in Hopwood v. Texas. The Supreme Court declined review, so that case is now the law in the three states (Texas, Louisiana and Mississippi) that make up the Fifth Circuit. The High Court also let stand the Sixth Circuit’s decision in Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, which effectively ignored the Court’s holding, in Romer v. Evans, that gays and lesbians may not be excluded from the protection of antidiscrimination laws. Greenville Women’s Clinic v. Bryant, in which the Fourth Circuit upheld onerous state licensing requirements–which apply to no other physicians–for abortion providers, still stands.
Much has been made of the need for ideological balance on the Supreme Court, but the argument applies with equal force to the federal circuit courts. Democratic senators should not just play blue-slip politics–vetoing nominees from their state whom they oppose–they should insist on hearings to review the state of the appellate judiciary circuit by circuit. The goal should be an intellectually distinguished bench and, at least, an ideologically balanced one. Nominees should be approved or rejected in this context. Democrats must also demand a full-blown, in-depth examination of each nominee’s record (if this is “Borking,” make the most of it). Only those candidates should be confirmed who have demonstrated a commitment to protecting the rights of ordinary Americans against powerful institutions, whether government or private, and to our national ideal of civil rights, women’s rights and individual liberties; who respect Congress’s power to legislate to protect the health and safety of workers, preserve the environment and enforce antitrust law.
Republicans are already crying obstructionism, cynically ignoring their own blockade of centrist Clinton nominees. With the Administration’s intentions now on the table, those who will be hurt most by them–minorities, women, working people, the elderly, environmentalists–should launch a missive attack on Senate minority leader Tom Daschle and the nine Judiciary Committee Democrats (who if they stay united have the power to thwart Bush’s court-packing scheme) telling them to stand firm. (For information on what you can do, go to www.thenation.com.)