The Nation

Bush Successful in Appointing Activist Judges

Friday, June 25, 2004

Bush has racked up an impressive streak of federal judicial appointments and the trend could scale back women's reproductive freedom, according to women's groups. Some of the most controversial appointments are detailed here.

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Charlotte Frank

(WOMENSENEWS)--With the presidential election looming, women's reproductive rights groups are taking aim at what they see as George W. Bush's anti-female nominees to the federal bench.

To make their case, they point to how White House Counsel Alberto Gonzales details President George W. Bush's success with the appointments of federal judges on the president's Web site.

There, Gonzales writes that Bush has nominated "a record number of federal judges . . . almost double the nominations that any of the past six presidents submitted in the first year."

The appointments to the federal bench, Gonzales says in a separate Web cast, "represents perhaps the President's longest lasting legacy."

The Washington-based National Women's Law Center also points out the Bush's strong record of appointments, noting that at least 173 of Bush's nominees to the federal district and circuit courts were confirmed. Far from finding that a cause for celebration, however, the advocacy group fears that the appointments could lead to a scaling back of women's rights, especially in the area of hard-won reproductive freedom.

Federal courts are "increasingly being dominated by judges who threaten core legal protections for women," argues Judith Appelbaum, vice president and legal director of the nonprofit advocacy organization. In addition, Appelbaum has her eye on the composition of the federal appeals court in the District of Columbia, also known as the DC Circuit Court, which rules on many policies instituted by federal agencies such as the Department of Labor.

While a majority of Bush's judicial nominees have been confirmed by the Senate, a handful of the most controversial appointments have been stalled in committee or by Senate filibusters.

Here is a summary of the most controversial candidates, some of whom are being filibustered:

For more information:

NARAL Pro-Choice America:
http://www.naral.org

National Women's Law Center--Judicial Nominations:
http://www.nwlc.org/display.cfm?section=jcwr

The White House--Judicial Nominations:
http://whitehouse.gov/infocus/judicialnominees/


Recess Appointments


William H. Pryor Jr. is up for the 11th Circuit which hears federal appeals from Florida, Alabama and Georgia.

Best known for supporting the display of the Ten Commandments in a state building, Pryor is a former Alabama state attorney general. A substantial majority of the committee of the American Bar Association, which rates federal judicial candidates, has deemed him "qualified." A minority of the same committee rated the Pryor "not qualified" and one committee member recused himself.

Pryor once called Roe v. Wade, the 1973 Supreme Court decision giving women the legal right to abortion, "the worst abomination of constitutional law in our history."

A Washington-based reproductive rights group, NARAL Pro-Choice America, has called Pryor "a vehement opponent of a woman's constitutional right to choose."

Pryor, however, also supported lifting the ban in Alabama on interracial marriage and he helped write a bill making cross-burning in that state a crime. In February, he was given a recess appointment by President Bush, who sidestepped the traditional Senate confirmation process. Pryor will sit temporarily on the 11th Circuit until 2005 when a new Congress convenes.

Another recess appointment by the President allowed Mississippi District Court Judge Charles W. Pickering Sr. to be elevated to the Fifth Circuit.

Pickering's nomination to the federal appeals court hearing cases from Texas, Louisiana and Mississippi faced a Senate filibuster. Pickering served as chair of the Republican Party Platform subcommittee that proposed a plank against Roe v. Wade and called for a constitutional amendment to ban abortion. He also voted against state funding for family planning programs when he was a state senator, according to the National Women's Law Center.


Nominees for D.C. Circuit


Janice Rogers Brown, who sits on California's highest state court, has been nominated to the D.C. Circuit. A majority of the ABA committee has rated her "qualified" while a minority has rated her "not qualified."

The National Women's Law Center notes that Brown "has taken a position that would undermine legal protections against sexual harassment in the work place. . . and has shown that she is willing to undermine the right to choose." Her confirmation has been blocked by a filibuster.

Brett M. Kavanaugh has also been nominated for a slot on the DC Circuit. A former assistant to Whitewater Independent Counsel Kenneth Starr, Kavanaugh's nomination hasn't made it to the Senate floor. The substantial majority of the ABA committee has deemed him "well qualified" and a minority "qualified."

Candidates Who Voted for Parental Notification


Claude A. Allen of Virginia has been nominated to the Fourth Circuit, which hears cases from Virginia, West Virginia, North Carolina and South Carolina.

A substantial majority of the American Bar Association has deemed him "qualified" and a minority as "not qualified".

The National Women's Law Center says that Allen supports restrictions on abortion rights including waiting periods. He also helped draft Virginia's parental notification law.

D. Michael Fisher, who was confirmed by the Senate late last year for a slot on the Third Circuit, also favors restrictions. He voted in favor of the Pennsylvania Abortion Control Act, which required a 24-hour waiting period, spousal notification and parental consent for minors seeking abortions. The spousal notification portion was struck down.

He has been given a "well qualified" rating by a substantial majority of the American Bar Association Committee on the federal judiciary and a "qualified" rating by a minority of the same panel.

In addition, NARAL notes, Fisher testified before the U.S. Senate in support of the Child Custody Protection Act, which would subject to criminal prosecution aunts, grandmothers and others who accompanied a young woman across state lines to have an abortion. He also opposed state legislation providing funding for contraceptive services, according to NARAL.

Boyle Confirmed for Fourth Circuit; Holmes Awaiting Approval


Terrence W. Boyle of North Carolina has been confirmed for the Richmond, Va. based 4th Circuit Court of Appeals. The American Bar Association rated him "qualified." The law center notes that he ruled against women in a Title VII sex discrimination case. His ruling was reversed on appeal.

James Leon Holmes has been nominated to the District Court for the Eastern District of Arkansas. NARAL points out that this former law partner was president of that state's Right to Life group from 1986 to 1987 and that he helped the Pro-Life Educational Alliance in Fayetteville, Ark. In 1997 he and his wife co-authored an article that promoted the idea of a wife being "subordinate" to her husband.



Facing Filibuster

Several Bush nominees are facing filibuster. One of them is Priscilla Owen, who was nominated for the Fifth Circuit. A justice on the Texas state Supreme Court and former partner at law firm Andrews and Kurth, she was deemed "well-qualified" by the ABA but is being opposed by consumer, union and women's groups for her pro-employer rulings.

NARAL notes: "in almost every case concerning reproductive rights decided by the Texas Supreme Court during her tenure, Owen has sought to restrict a woman's right to choose. In most of these cases, she did not merely uphold the Texas legislature in its decision to create a barrier to reproductive choice, she actually attempted to rewrite the statute to create her own additional barriers."

Carolyn Kuhl has found her nomination to the Ninth Circuit--which includes the western states of California, Arizona, Nevada, Alaska, Hawaii, Oregon, Idaho Montana and Washington--stalled by a filibuster as well.

A California state judge, Kuhl has been criticized for arguing to limit a minor's access to contraception and her opposition to affirmative action.

The National Women's Law Center notes that Kuhl dismissed a breach-of-privacy suit brought by a breast cancer patient whose doctor allowed a pharmaceutical company salesperson to sit in on her medical examination without her permission.

Kuhl's ruling was reversed by an appeals court. Kuhl served as U.S. Deputy Solicitor General between 1985 and 1986 and as U.S. Deputy Assistant Attorney General for the civil division between 1982 and 1985.

Frances A. McMorris, a journalist and lawyer, has covered courts and legal issues for The Wall Street Journal, The New York Daily News, Newsday and The New York Law Journal. She is the immediate past president of The Newswomen's Club of New York.


 
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