By Vera Haller
Monday, May 21, 2001
President Bush's first nominees for federal judgeships include one vocal opponent of abortion rights, but others have not ruled or spoken publicly on choice. Analysts say the list has a conservative, anti-civil rights bent.
(WOMENSENEWS)--President George W. Bush's first group of judicial nominees includes one vocal opponent of Roe v. Wade, which legalized abortion, in a field of largely conservative judges and lawyers who have not ruled or publicly taken a stand on basic abortion rights. Several, however, have been active in cases that ultimately limited the rights of those who face discrimination to turn to the federal courts for assistance.
Michael McConnell, a professor at the University of Utah College of Law, is the one nominee known to be anti-choice, said Monica Hobbs, federal legislative counsel for the Center for Reproductive Law and Policy.
"In this round, his Senate confirmation is going to cause a lot of controversy," Hobbs said in an interview. Other experts contacted for comment refused to speak for the record but expressed concern about the overall anti-civil rights tilt to the list.
McConnell was among 11 attorneys and jurists, including seven sitting judges, chosen by Bush on May 8 to fill vacancies on federal appeal courts around the country. The federal court system has 99 vacancies. Before taking up the lifetime appointments, the nominees are subject to Senate confirmation.
"We heard him as a rumored candidate, so we were upset, but we weren't surprised when we saw him on the list," Hobbs said of McConnell. "We were surprised there weren't other obvious anti-choice nominees."
Though many of the 11 nominees are considered conservatives, Bush's list also includes two African Americans who were both appointed to federal judgeships by former president Bill Clinton, one Hispanic and three women.
McConnell, nominated to the 10th U.S. Circuit Court of Appeals based in Denver, is best known for working to protect religious interests from government interference. He supports prayer in public schools and increased public aid to private religious schools.
In an editorial on May 11, The New York Times described McConnell as "a bitter foe of abortion rights." The group, Americans United for Separation of Church and State, issued a news release opposing his nomination, citing among other reasons, his opposition to "Roe v. Wade and other Supreme Court rulings upholding abortion rights."
In a National Public Radio report in 1998 marking the 25th anniversary of Roe v. Wade, McConnell was quoted as saying: "Most Americans do not think that the fetus or unborn child is a nothing, that it's merely a piece of tissue. Most people think that it deserves some form of legal protection. ... The problem with abortion law is not that the courts have allowed minor regulation around the fringes. The problem is that the courts have not allowed more serious protection for the unborn."
The other nominees' stands on abortion rights are not as clear, Hobbs said. "A preliminary look indicates they themselves have not ruled on Roe v. Wade in their capacity as judges," she said.
Several nominees, however, have been involved in issues linked to the abortion debate. One is Texas Supreme Court Justice Priscilla R. Owen, nominated to the 5th U.S. Circuit Court of Appeals based in New Orleans.
Ruling on Texas' parental notification law last year, Owen dissented in a 6-3 decision that allowed a 17-year-old girl to have an abortion without telling her parents.
In a separate opinion, Owen wrote that the Texas Supreme Court was establishing such a low standard for young women to get exemptions from the notification requirement as to render the statute meaningless.
Two other nominees have been involved in litigation against violent anti-abortion protesters.
John G. Roberts Jr., a Washington attorney specializing in U.S. Supreme Court litigation and appellate practice, is one of two nominees to the District of Columbia Circuit Court of Appeals, considered by many to be the second most powerful court in the country after the U.S. Supreme Court.
Roberts, named by the National Law Journal in 1999 as one of the top 10 civil litigators in Washington, argued in 1992 before the Supreme Court against using a federal civil rights law to stop Operation Rescue protests outside abortion clinics.
Roberts was at that time deputy solicitor general for the administration of the elder George Bush. He argued that the dispute belonged in state court, saying the federal anti-discrimination law did not protect clinics against the conduct of anti-abortion protesters. The Supreme Court ultimately barred the use of the federal statute against the protesters.
The other nominee to the D.C. appeals court, Washington attorney Miguel Estrada, participated in a similar case before the U.S. Supreme Court in 1993. In that case, the National Organization for Women was seeking to use the federal racketeering statute against violent anti-abortion protesters.
Estrada, then assistant to the solicitor general in the Clinton administration, argued on the side of the National Organization for Women. His arguments were not ideological. He urged the court to allow the racketeering law to be used against the abortion opponents, arguing that to limit its scope in this particular case would prevent the government from using it against terrorist groups.
Estrada, if confirmed by the Senate, would be the first Hispanic to sit on the U.S. Circuit Court of Appeals in Washington.
His presence on the list, along with the two African American judges and three women, was seen by some as a sign that President Bush hoped to avoid contentious confirmation battles in the Senate.
"We have a 50-50 split in the Senate. Bush has to get enough senators on his side so he has to make sure the nominees are not so radical in their positions," Hobbs said.
She pointed to the fact that 42 senators voted against the confirmation of John Ashroft as attorney general.
Hobbs said she believes Bush is on notice that his nominees will not necessarily sail through the confirmation process.
"He's aware that every name he puts forth will be closely scrutinized," Hobbs said.
Susan Cullman, head of Republicans for Choice, said her staff was looking into the background of the nominees, but she declined to comment on individuals.
One pro-choice Republican, Senator Olympia Snowe of Maine, also would not comment until the confirmation process was further along, a spokesman said.
Cullman noted that the appeals court nominations were important because federal appeals court judges often are tapped to fill vacancies on the U.S. Supreme Court. "We're all on our toes," she said.
Vera Haller is a free-lance writer in New York.
The District of Columbia Circuit
Miguel Estrada--Partner in the Washington firm Gibson, Dunn and Crutcher. He specializes in appellate practice and white-collar crime. He served as assistant to Solicitor General Kenneth Star in the Justice Department from 1992 to 1997. A graduate of Harvard Law School, Estrada clerked for U.S. Supreme Court Justice Anthony Kennedy from 1988 to 1989. He is the youngest of the nominees, turning 40 in September.
The Herald-Sun of Durham, N.C., wrote on May 10 that Estrada believes in the conservative judicial model of reading the "plain language" of a law or of the Constitution, a reference to strict constructionism. Supreme Court Justice Antonin Scalia is one of the best known proponents of that view.
Born in Honduras, Estrada came to the United States as a teen-ager. In the Justice Department he wrote a brief supporting the position of the National Organization for Women in a case involving access to abortion clinics. News reports said that while he personally opposed abortion, he supported the use of anti-racketeering statutes to limit anti-abortion protests, noting that the same statutes were vital in fighting terrorism.
Estrada represented the city of Annapolis, Maryland when the American Civil Liberties Union and a local chapter of the NAACP challenged the city's anti-loitering law. Critics had feared the law would allow police to unfairly target young blacks. After a federal judge ruled the law unconstitutional, the city earlier this year dropped its bid to save the law, though Estrada was quoted in news articles as saying he had been prepared to take an appeal all the way to the U.S. Supreme Court.
John G. Roberts Jr.--Partner with Washington firm Hogan and Hartson. He specializes in U.S. Supreme Court litigation and appellate practice. A Harvard Law graduate, he clerked for U.S. Supreme Court Justice William H. Rehnquist in 1980 and 1981. He was associate counsel to President Reagan from 1982 to 1986 and deputy solicitor general from 1989 to 1993.
Roberts once represented the National Collegiate Athletic Association in a sex discrimination case before the Supreme Court. The high court ruled in favor of the association, limiting bias suits against the organization.
The Second Circuit
Barrington D. Parker Jr.--U.S. District Judge for the Southern District of New York; appointed in 1994 by President Bill Clinton. He is one of two African Americans on the list. Parker, a former teacher, spent most of his law career in private practice. His father, Barrington D. Parker Sr., was a former chief judge for the U.S. District Court in Washington. Parker Jr. attended Yale University Law School.
The Fourth Circuit
Dennis W. Shedd--U.S. District Court Judge for the District of South Carolina; appointed in 1990 by President George Bush. Before joining the bench, he was in private practice in Columbia, S.C. He served on the staff of Sen. Strom Thurmond, R-S.C., from 1978 to 1988.
Shedd ruled in 1997 that Congress had exceeded its power when it enacted the Drivers' Privacy Act of 1994, which limited states' ability to release personal information about drivers. The U.S. Supreme Court reversed that decision.
Roger L. Gregory--One of two Clinton judicial nominees to be included on Bush's list. Clinton named Gregory to the 4th Circuit Court of Appeals in a one-year recess appointment before leaving office. He is the first African American to sit on the appeals court based in Richmond, Va. Gregory attended Virginia State University and received his degree from the University of Michigan Law School.
Terrence W. Boyle--Chief Judge for the U.S. District Court for the Eastern District of North Carolina; appointed in 1984 by President Reagan. Boyle attended Brown University and received his law degree from American University. He was a legislative assistant to Sen. Jesse Helms, R-N.C., in 1973 and worked in private practice in North Carolina before his appointment to the federal bench.
The Fifth Circuit
Priscilla R. Owen--Justice, Texas Supreme Court, elected 1994. A law graduate of Baylor University, her most publicized ruling came in 1997 when she authored the 7-1 Texas Supreme Court decision that schools can limit the hair length of boys and ban boys' ponytails. The court ruled that a school district had not violated a student's rights by disciplining him for wearing his hair too long.
Edith Brown Clement--U.S. District Judge for the Eastern District of Louisiana; appointed in 1991 by President George Bush. Last year Clement presided over the insurance fraud trial at which former Louisiana Gov. Edwin Edwards was acquitted. Before taking the bench, Clement practiced maritime law at a New Orleans law firm. She earned her law degree at Tulane University. She is a member of the conservative Federalist Society.
The Sixth Circuit
Deborah L. Cook--Justice, Ohio Supreme Court, elected in 1994. She has spent most of her career in private practice in Akron. She is a law graduate of the University of Akron.
Jeffrey S. Sutton--Partner with Jones, Day, Reavis and Pogue, a Cleveland, Ohio, law firm. He was Ohio's state solicitor from 1995 to 1998, during which time he argued nine cases before the U.S. Supreme Court, most of them about states' rights.
Those included the 5-4 decisions in which the high court said states that discriminate against disabled workers cannot be sued under the Americans With Disabilities Act and the Age Discrimination in Employment Act, as well as the decision that eliminated private suits based on apparently neutral practices that have discriminatory impact.
Sutton also represented Alabama in challenging a portion of the 1994 Violence Against Women Act. In that case, the Supreme Court struck down a key portion of the legislation that allowed victims of rape and gender-motivated violence to sue their assailants for damages in federal court. The court agreed with Sutton's argument that Congress had exceeded its power in giving victims the right to sue.
He is a law graduate of Ohio State University and has clerked for both Supreme Court Justices Lewis F. Powell and Antonin Scalia.
Sutton is a member of the conservative legal group, the Federalist Society, an advocate of so-called "federalism," a conservative legal theory that seeks to limit congressional power to enact civil rights legislation. As state solicitor in Ohio, he defended the Cleveland school voucher program.
The Tenth Circuit
Michael McConnell--Professor at the University of Utah College of Law. He is best known for his work in religious separation law, arguing that courts have been too rigid in striking down programs because they violate the Constitution's separation of church and state provision. He has criticized Roe v. Wade. McConnell attended Michigan State University and received his law degree from the Chicago Law School.