By Jillian Jones
Friday, May 9, 2003
Bush's nominees for lifetime appointments to the federal bench have records on such issues as reproductive health and workplace rights that suggest their tenure in the federal courts could dramatically alter women's lives for decades.
(WOMENSENEWS)--The temperament and philosophy of the judges nominated by the Bush administration to the federal bench do not bode well for many women. The decisions these judges are likely to make--based on their current records--are likely to further constrain reproductive health rights and curtail how sex bias is addressed in the workplace.
The individuals who sit on the lower federal courts have lifetime appointments. They decide laws in key areas including the environment,civil and constitutional rights and health care and affect large geographic areas. More significantly, because most legal cases don't make it as far as the U.S. Supreme Court, the impact of their rulings has the potential to affect public policy over the next several decades. In fact, the federal Courts of Appeals rule on approximately 30,000 cases a year while only 100 are heard annually by the Supreme Court.
"Never in recent memory has there been such an affront to the balance of the judiciary . . . This is really an attempt to roll back any progress toward equality for all Americans," says Senate Judiciary Committee member Ted Kennedy, a Massachusetts Democrat.
Here is a run-down of the most controversial nominees. Most are expected to be approved by the Senate.
Cook was nominated to the 6th Circuit Court of Appeals, which includes Michigan and Tennessee. As a sitting judge, Cook had a record of not upholding the enforcement of fair employment laws. The National Council of Jewish Women, based in New York, reports Cook ruled that sexist workplace comments don't necessarily prove bias in discrimination cases.
Along with fellow nominees Miguel Estrada and Priscilla Owen, Cook is a member of the Federalist Society, a national legal network known for its member's rightist views. Cook's candidacy was approved by the Senate's Judiciary Committee, possibly in violation of its own rules that a minority member must approve closing debate. She was confirmed by the full Senate on May 5.
Estrada was nominated to the U.S. Court of Appeals for the D.C. Circuit. He is an architect of the Bush campaign's legal strategy that ultimately led to the U.S. Supreme Court's decision to overturn the Florida Supreme Court's order for a recount, thus handing Bush the 2000 election. His former superior in the Office of the Solicitor General, Paul Bender, says Estrada is so "ideologically driven that he couldn't be trusted to state the law in a fair, neutral way."
Some Democrats have dubbed Estrada the "stealth candidate" because of the difficulty of obtaining information about him either from the nominee himself or the White House. He has been directly asked about his judicial philosophy, including matters dealing with privacy and reproductive rights. Estrada has been evasive. At one point, for instance, he testified that he never reads Supreme Court decisions and could not recall discussing any high-court rulings--including the most controversial--while working in the Office of Solicitor General.
Estrada's nomination is currently stalled by a three-month-old Democrat-led filibuster.
Holmes was nominated for the federal trial bench in Little Rock, Ark. Holmes is the former president of Arkansas Right to Life, based in Little Rock. In a published essay that argued abortions should be banned, Holmes wrote that "conceptions from rape occur with approximately the same frequency as snowfall in Miami"--a belief most recently refuted by a study published in 2000 by the American Journal of Preventive Medicine, which found that about 25,000 pregnancies in the U.S. each year are the result of rape.
In 1997, Holmes and his wife co-authored an article for the Arkansas Catholic in Little Rock that stated a wife is to "subordinate" herself to her husband.
Initially, a vote on Holmes was delayed because of a request by Arlen Specter, a Pennsylvania Republican, but last week the Judiciary Committee took the unusual step of sending his nomination to the full Senate without a recommendation. According to press reports, Senate Judiciary Chair Orrin Hatch, a Utah Republican, bypassed the committee vote out of concern that the other Republican members may be "uncomfortable" with Holmes because of his views about women and their role.
Both Democratic senators from Arkansas--Mark Pryor and Blanche Cook Lincoln--support the nomination. There is no scheduled date yet for the Senate vote.
Kuhl was nominated to the 9th Circuit Court of Appeals, which includes Hawaii, California, Arizona and Idaho. As a lawyer in Ronald Reagan's Justice Department, Kuhl argued in favor of asking the Supreme Court to overturn Roe v. Wade in the 1986 case Thornburgh v. American College of Obstetricians and Gynecologists. During that same tenure, she also argued in favor of granting tax-exempt status to Bob Jones University, in Greenville, S.C., a university notorious for advocating racial discrimination.
In her current capacity as a superior court judge in Los Angeles, Kuhl dismissed a claim by a woman who alleged her privacy had been violated when her doctor allowed a drug-company representative to witness her breast exam without her consent. Her decision was reversed by a higher court. Yesterday, the Judiciary Committee approved Kuhl with a 10-9 vote, along party lines.
In March, Priscilla Owen was re-nominated by President Bush to the 5th Circuit Court of Appeals covering Louisiana, Mississippi and Texas. Owen was rejected last year by the then-Democratic controlled Senate Judiciary Committee.
Both the National Organization for Women and NARAL Pro-Choice America (formerly The National Abortion and Reproductive Rights Action League) describe Owen as among the most extreme of the judicial activists on the Texas Supreme Court in Austin, where she currently sits. They say Owen inserted her personal views on abortion into judicial decision-making, including on a parental notification case, by trying to re-write a Texas statute to make it almost impossible for a young woman to obtain the procedure without informing her parents.
Democrats began filibustering her nomination on May 1.
Pickering was re-nominated by Bush to the 5th Circuit Court of Appeals covering Louisiana, Mississippi and Texas. Pickering was rejected last year by the then-Democratic controlled Senate Judiciary Committee, for questions raised about his allegedly segregationist past including possible links with an anti-integration group and his criticism of the Voting Rights Act.
Pickering opposes abortion and believes Roe should be overturned. As a Mississippi state senator, Pickering supported a constitutional amendment to outlaw abortion and voted against state funding for family planning services.
Pickering's nomination is pending with no current scheduled vote.
Roberts was nominated to the D.C. Court of Appeals earlier this year. As deputy solicitor general serving President George H. Bush, Roberts argued in favor of a gag rule barring doctors working in family-planning programs that received federal funding from even mentioning the option of abortion. His brief also argued that Roe was wrongly decided.
In the same capacity, Roberts supported anti-choice group Operation Rescue, and six other individuals who blocked access to reproductive clinics. Roberts was also approved by the Judiciary Committee yesterday.
Jillian Jonas is a freelance journalist who lives in New York.
Benchmark--Pending Nominees on the Bench:
U.S. Department of Justice--Office of Legal Policy: