STATUS REPORT

Battle Continues Over Right-Wing Judicial Nominees

November 7, 2003

• Women Nominees are the Focus
• Victory! Estrada Withdrawal
• Proposed Legislation Would Abolish Filibuster
• Summary of Key Judicial Nominees
• More Information

As Congress nears adjournment in late November, Republican pressure is on to confirm as many ultra-conservative judicial nominees as possible or, failing that, to loudly criticize the Democrats for their committed opposition to a number of right-wing judicial candidates. Close observers believe that the Senate Republican leadership will try soon to move women nominees that they have failed to get confirmed directly to the floor where Democrats will be forced to filibuster each one. Then, it is speculated, the Republicans will charge that the Democrats are opposed to women judges. This tactic was also used when they have argued in the recent past that the Democrats are opposed to Hispanic nominees (Miguel Estrada) and Catholic nominees (Pryor).

Predictably, the rumor also indicates that Republicans will again try to bring a number of right-wing nominees who are African-American or Hispanic to the floor and repeat the procedure in order to accuse Democrats of being racist.  This attempt to paint Democrats with a broad brush of sex, race and ethnic discrimination is a deceitful strategy meant to camouflage the fact that these nominees, themselves, oppose civil rights protections, worker and consumer rights and women's reproductive rights.

The parade of reactionary and extreme right-wing candidates for federal judicial posts seems endless. Currently, the Bush administration has seen 168 of its nominees confirmed and, of course, there is a strong possibility that one or more Supreme Court vacancies will occur in the near future. NOW and our progressive allies fear that just one more conservative justice on the court will flip the narrow margin to produce a majority that will consistently oppose women's rights, civil rights, consumer rights against big business interests, and certainly would reverse Roe v. Wade.

For details about the records of recent judicial nominees, see Judicial Nominees – Special Report: Our Courts at Risk. 

Please check our legislative action center for when you should take action on current nominees. It is imperative that NOW activists speak out against nominees who will act against women's rights. All senators need to hear from their constituents that they oppose this court-packing by the Bush administration.

Women Nominees are the Focus

Among this group is the arch-conservative Los Angeles Superior Court Judge Carolyn Kuhl, nominee for the Ninth Circuit Court (Wash., Ore., Mont., Idaho, Nev., Calif., and Ariz.) and Priscilla Owen, Texas Supreme Court associate justice, nominated to the Fifth Circuit Court (Tex., La., and Miss.).  Kuhl's nomination soon to be sent to the floor was approved in a party-line vote on May 8. Owen's nomination appeared doomed with a third rejection of a cloture* motion on July 28. The judicial records of both nominees reveal them to be opponents of women's reproductive rights. Kuhl advocates for the complete reversal of Roe v. Wade. She also supported the gag rule and parental notification for young women in need of reproductive services. More information on the two nominees appears in the summary that follows.

Ultra-conservative California Supreme Court Judge Janice Rogers Brown, an African American, has been nominated to the U.S. Court of Appeals for the District of Columbia. Brown opposes affirmative action, abortion and birth control rights as well as government benefit programs. Her court opinions display a lack of support for civil rights protections and, in one case, she wrote a dissent that said that the First Amendment protects racial slurs in the workplace, even when illegal race discrimination is involved.

It is expected that a filibuster will be raised against Brown – who has been described as being to the right of Supreme Court Justices Antonin Scalia and Clarence Thomas. The Judiciary Committee voted on straight party lines to send her nomination to the floor.

Earlier this summer, the judiciary committee sent to the floor a somewhat more moderate nominee Allyson Duncan, a Raleigh, N.C. attorney and previous state appeals court judge, for a seat on the U.S. Fourth Circuit Court of Appeals in Richmond, VA. Duncan is the first African-American woman on the Fourth Circuit and only its third woman. The circuit serves West Virginia, Virginia, Maryland, North Carolina and South Carolina. In her interview, Duncan, a conservative favorite, evaded answering questions regarding her opinion of the U.S. Supreme Court's recent affirmative action decisions. However, due to her more moderate politics, Duncan's nomination garnered bipartisan support. On a 19-0 vote, the committee approved Duncan's nomination, sending it to the Senate floor where she was confirmed on July 17.

The Bush administration has failed to name many women to federal judgeships. Of George W.'s nominees to date, 19% are women (40 of 206 nominees).  President Clinton nominated 133 women out of 433 nominees (30%).  For the most part, the women that Bush has named are well out of the legal mainstream. Should he nominate women who would not roll back women rights, reproductive rights and civil rights, the Senate might be more inclined to confirm his nominees. In fact, the record shows that the Senate has confirmed 31 of 35 women judicial nominees to be brought to be floor – over 90%.

Victory! Estrada Withdrawal

One clear victory was the withdrawal on September 4 of Miguel Estrada, an ideological extremist who is active in the Federalist Society, a right-wing legal activism group. Estrada, currently in private practice was nominated to the critically important U.S. Court of Appeals for the District of Columbia Circuit, and was widely rumored to be a stealth Supreme Court nominee. Known for his personal conservative beliefs and compared to Supreme Court Justice Antonin Scalia, Estrada refused to supply the Senate Judiciary Committee with records of his work at the Justice Department where he was Assistant to the Solicitor General. Estrada also served as a law clerk for U.S. Supreme Court Justice Anthony Kennedy. What was known of his record indicated that he would have little concern for equal access to justice for all, civil rights protections, worker and consumer safety, and the environment. Most Democratic senators presented a united front against Estrada by sustaining a filibuster for several months until it became clear that efforts to force confirmation were futile.

Proposed Legislation Would Abolish Filibuster

Rep. Zell Miller, a conservative Democrat from Georgia who usually votes to support Bush's right-wing nominees, introduced on October 22 a resolution (S. Res. 249) that would abolish the filibuster by amending Rule XXII of the Standing Rules of the Senate, relating to cloture. Cloture is achieved when 60 votes to end the filibuster are reached. Few believe that this resolution will be adopted, given that filibusters advantage the party out of power and future elections could again result in a change in majority party. The Senate Republican leadership has offered its own legislation to limit objections to their nominees. S. Res. 138, introduced May 9, would amend Senate rules by restricting cloture motions, including requiring only a simple majority (51 votes) to end a filibuster. Meanwhile, Senate Republicans have been doing their best to demonize the use of the filibuster against their (ultra-conservative) nominees.

Summary of Key Judicial Nominees

Claude A. Allen – Hearing held, pending in Committee

Allen is nominated to the United States Court of Appeals for the 4th Circuit. Currently the Deputy Secretary of Health and Human Services, Allen has spent his tenure attempting to advance the interests of the religious right, particularly in the areas of reproductive freedom, abstinence-only sex education and lesbian, gay, bisexual and trans-gender rights.  On October 28, the Senate Judiciary Committee held its hearing on his nomination.  Committee members particularly questioned this nomination, as Allen is a Virginian who has been nominated to fill a vacancy typically held by a Maryland resident. Maryland Sens. Paul Sarbannes and Barbara Mikulski are leading the opposition because they believe that the vacancy should be filled by a Maryland nominee. The Committee has not yet voted on whether to send Allen to the floor.

According to an Alliance for Justice news release (Oct. 28, 2003) "Allen was the first African American aide to Senator Jesse Helms, and has been noted for his statement, during Helms' 1984 re-election campaign, that Helms' opponent was vulnerable for his links 'with the queers.'"

Terrence Boyle – Pending in committee

Nominated to the United States Court of Appeals, 4th Circuit, Terrence Boyle has a questionable history with privacy rights and racial minorities.  He is currently serving as Chief Judge of the United States District Court for the Eastern District of North Carolina.

Janice Rogers Brown – Full Senate vote pending, filibuster expected

Brown is nominated to fill a vacancy in the United States Court of Appeals, District of Columbia Circuit, and is currently serving as a California Supreme Court Justice.  At her hearing on Wednesday, October 22, Brown claimed to understand the importance of separating her personal views from her professional life, but her record belies this statement. Her court decisions reflect her desire to limit abortion rights and corporate liability and display her outright opposition to affirmative action. According to the National Women's Law Center, Brown, as a California Supreme Court Justice, has taken positions that would undermine legal protections against harassment, including sexual harassment, in the workplace. She would have struck down an injunction against the continued use of obscenities and ethnic slurs like "wetback" against Latino employees, and she even raised doubts about whether women subjected to offensive verbal conduct of a sexual nature can challenge it as sexual harassment under Title VII, despite well-established, longstanding U.S. Supreme Court precedents finding that such conduct is illegal. (Aguilar v. Avis Rent A car Systems, Inc.)

The Senate Judiciary Committee voted 10-9 along party lines to send her name to the floor. 

D. Michael Fisher – Full Senate vote pending

Nominated to the United States Court of Appeals for the Third Circuit, Fisher currently serves as the Attorney General for Pennsylvania.  His conservative record displays his strong opposition to reproductive freedom and gay rights and a vigorous support for the death penalty.  On October 15, the Senate Judiciary Committee held a hearing on Fisher's nomination.  This move was particularly troubling because he is currently involved in post-trial motions to a lawsuit where he was ordered to pay damages to two former employees for retaliating at them in response to earlier lawsuits they had filed.  The bench to which he has been nominated is the same court that would decide his own case on appeal.  The Senate Judiciary Committee voted 12-0 on November 6 to send Fisher's name to the floor; Sens. Joe Biden (D-Del.) and Herb Kohl (D-Wis.) voted in favor of Fisher, and the other Democrats voted present because of the open judgment against Fisher.

According to an Alliance for Justice report, as recently as June of 2003, Fisher stated at a National Right to Life Convention that "All of us are hoping and praying that the day will come under the leadership of George W. Bush that we'll have a Supreme Court in the future with justices who will leave it to the states to decide the legality of the issue by overturning Roe v. Wade."

During his 2002 gubernatorial campaign, Fisher stated,"…abortion is becoming no more than just a form of family planning by those people who are seeking it," and that "the more accessible abortions are – there's no question in my mind – the stronger the likelihood there is that a mother will seek that alternative first before looking at other alternatives."

During the same campaign, the nominee stated, "I would not support a bill that would recognize gay marriages. I would not do anything to provide funding that would promote that, whether it would be for the expansion of benefits for state employees or for the provision of money to benefit homosexual partners."

James Leon Holmes – Full Senate vote pending

Holmes is nominated to the U.S. District Court for the Eastern District of Arkansas.  An ultra-conservative partner in an Arkansas law firm, Holmes has a disturbing record on women's rights.  He has zealously spoken out against abortion and has made extreme statements regarding the separation of church and state, gay rights, and gender equality.  His nomination passed through the Senate Judiciary Committee on May 1 in a 10-9 vote.

According to Forward.com (July 11, 2003), Holmes argued in a 1997 article co-written with his wife for a Catholic publication "the wife is to subordinate herself to her husband." In another article, he incorrectly claimed "concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami."

Holmes also wrote, in a response to a 1987 article, abortion-rights activists were pushing the country to abandon "what little morality our society recognizes. This was attempted by one highly sophisticated, historically Christian nation in our century - Nazi Germany."

Brett M. Kavanaugh – Pending in committee

Kavanaugh has been nominated to the U.S. Court of Appeals for the District of Columbia.  He has spent much of his legal career working for ultra-conservative legal causes, including working with Kenneth Starr on President Clinton's impeachment investigation.  He is currently serving as Assistant White House Counsel to George W. Bush and has championed some of his most controversial judicial nominees.  Kavanaugh has no judicial experience. 

Carolyn Kuhl – Full Senate vote pending, filibuster expected

Carolyn Kuhl is nominated to the U.S. Ninth Circuit Court of Appeals.  Kuhl, who is currently a Los Angeles Superior Court judge, has a long history of hostility toward the rights of women and minorities.  She has urged a complete reversal of Roe v. Wade and has advocated for parental notification for young women in need of reproductive services.  In a 1986 article, Kuhl wrote that programs such as affirmative action are "divisive societal manipulations."  At her Committee hearing, Kuhl refused to answer inquiries about her views on reproductive rights and affirmative action.  Despite her clear record on these decisive issues, the Senate Judiciary Committee voted on straight party lines (10-9) to send the nomination to the full Senate on May 8.

In an amicus brief Kuhl co-authored for the case, Thornburgh v. American College of Obstetricians and Gynecologists, she wrote: "The textual history and doctrinal basis of [Roe] is so far flawed…that this Court should overrule it and return the law to the condition in which it was before that was decided."

David W. McKeague – Pending in committee

McKeague is nominated to the United States Court of Appeals for the 6^th Circuit.   McKeague is a right-wing Michigan District Court judge with a record of a bias against plaintiffs and a history of judgments favoring civil defendants.  His temperament has been described as "rude" and "abrupt and discourteous" by lawyers who have argued before him. The Alliance for Justice concluded that McKeague's record "can be best characterized as evincing an eagerness to resolve cases on summary judgment, thereby baring access to trial for broad categories of litigants. McKeague's actions in a Michigan prisoners' rights case brought by the U.S. Justice Department, "suggest a predisposition against one of the most marginalized and powerless populations in our society." McKeague is a long-time member of the Federalist society.

Priscilla Owen - Filibustered

Owen is nominated to the United States Court of Appeals, 5th Circuit.  She is currently an Associate Justice on the Texas Supreme Court who has been criticized for being the "far right wing" of an already conservative court.  Her overall conservative agenda and history of animosity toward women's issues is apparent.  She has worked to limit reproductive rights, including narrowing buffer zones around abortion clinics and calling for parental notification for young women's health services.  Owen frequently sides with big corporations and has accepted thousands of dollars from Enron.  On July 28, the Senators rejected a third effort to end the filibuster on Owen's nomination.

An Alliance for Justice report on Owen documented numerous instances of her hard line against granting minor's rights to privacy in reproductive matters. In the case In re Jane Doe 3, where the minor seeking a judicial bypass testified, among other things, that her father, who is an alcoholic, would fly into a rage and physically abuse her mother when she (the minor) did things that upset him, Owen dissented suggesting that Doe should produce more details regarding the abuse. She also asserted that "a parent must have wide latitude to exert influence over and to discipline a child," implying that such "latitude" might include subjecting the daughter to the emotional distress of witnessing the father's abuse of the mother."

William H. Pryor - Filibustered

Pryor has been nominated for the U.S. Court of Appeals for the 11^th Circuit.  Pryor has used his office s Attorney General for Alabama to promote his religious agenda, arguing that Christianity and the government should work hand in hand.  A member of the Federalist society, he holds extremist conservative views toward women's rights and civil rights.  Pryor advocates for the outright reversal of Roe v. Wade and has worked to limit claims of discrimination based on age, race, and ethnicity.  His record reflects his tendency to side with large corporations at the expense of the environment.  On November 6, the Senate again rejected (51-43) an effort to end the filibuster of Pryor's nomination.

Pryor has said Roe v. Wade is "the worst abomination of constitutional law in our history." Speaking at a 1997 rally, Prior said "I will never forget January 22, 1973, the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children." (Wall Street Journal, May 21, 1997).

Charles Pickering - Filibustered

Pickering was re-nominated by President Bush on January 7 -- just hours after Republicans took control of the Senate -- for the 5^th Circuit Court of Appeals.  His record on women's issues and civil rights has raised significant cause for concern.  A long-standing opponent of the Equal Rights Amendment, Pickering has aligned himself with committees and organizations that speak out against abortion and has voted against state funding for family planning.  He uses his judicial power to push his partisan and personal agenda, especially his religious beliefs, through his decisions. In their review of Pickering's record, the Mississippi NAACP referred to Pickering's attitude toward civil rights plaintiffs as "hostile."  His nomination was sent to the floor on October 30, and the Senate successfully rejected his cloture in a 54-43 vote.