Bush's Judges: Right-Wing Ideologues

In 1988, while trying to convince skeptical conservative activists of his father's Christian bona fides, George W. Bush reassured them that George I was with them on judicial nominations, as well as abortion and other issues dear to their hearts. Then he punctuated his declarations with the six words that would ensure their support for him 12 years later: "Jesus Christ is my personal savior."

Bush's brand of religiosity permeates his national policies. When Bob Woodward asked him whether he consulted his dad before invading Iraq, Bush said, "He is the wrong father to appeal to for advice, the wrong father to go to, to appeal to in terms of strength. There's a higher Father that I appeal to."

George W. Bush's sort of Christianity also guides his judicial nominations. Bush's nominees for lifetime appointments to our federal courts are judges who would eviscerate civil rights, workers' rights, and the environment. Their agendas are anti-choice and pro-corporate.

Many people think the two most important things at stake in November's presidential election are the war on Iraq and the economy. True, but perhaps the most far-reaching impact of this election is who will appoint the nation's judges beginning January 2005.

The political balance on the Supreme Court hangs by a slender thread. Seventeen cases were decided on a 5-4 vote. Associate Justice Sandra Day O'Connor provided the swing vote in many of them. O'Connor and Chief Justice William Rehnquist have reportedly considered stepping down from the Court.

Associate Justice John Paul Stevens, lamenting the Court's interference in the 2000 presidential election, said, "Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

Although a one-vote margin of the Supreme Court anointed George W. Bush president in 2000, the Court has not voted in lockstep this term. In the Guantánamo and U.S. citizen detention cases, the Court made clear that the President's power is not absolute. It upheld the rights of the disabled, and non-citizens to recover for human rights violations.

But the next President of the United States may have the opportunity to appoint four new justices to the Supreme Court. That power could radically change the complexion of the precariously divided Court that pronounces the law of the land.

Rehnquist, who has been on the Court for 32 years, is 79 years old. Stevens, a member of the Court for 29 years, is 84. And O'Connor, on the Court for 23 years, is 74 years old. Associate Justice Ruth Bader Ginsburg, 71 years old, is a cancer survivor in frail health.

It is common for a Supreme Court justice to serve for at least 20 or 30 years. That means that the man elected in November will likely determine the fabric of the law in America for the next 40 years. Ralph Neas, executive director of People for the American Way, says "more than 100 Supreme Court precedents would be overturned with one or two more right-wing justices like Thomas and Scalia."

If Bush is elected, we can expect his Supreme Court picks to mirror his choices for our nation's lower federal courts. Two of his nominees have made news lately for their advice on how Bush's interrogators can torture prisoners without risking criminal prosecution.

Former Assistant Attorney General Jay S. Bybee prepared a 50-page document that defied U.S. statutory and treaty law by defining torture so narrowly, it would permit horrific treatment as long it wasn't life-threatening. Bush rewarded Bybee for his legal creativity with an appointment-for-life to the Ninth Circuit Court of Appeals, the federal court with the largest caseload in the country.

Pentagon General Counsel William Haynes II is a career military lawyer with almost no courtroom experience that would qualify him for a lifetime seat on the Fourth Circuit Court of Appeals. Yet after Haynes supervised the preparation of a report advising that the President's Commander-in-Chief authority would trump the prohibition against torture, Bush nominated him for a coveted spot on the Fourth Circuit.

This "federal appeals court in Richmond, Va., is emerging as a cutting-edge testing ground for conservative legal theories that only a few years ago seemed radical and almost unthinkable to liberal legal analysts," Warren Richey wrote in the Christian Science Monitor two years ago. "Today, many of them are the law of the land. Instead of being overturned, these legal theories – involving limits to federal power and defendants' rights – are being embraced and upheld by a slim majority of conservative justices on the US Supreme Court," according to Richey. It's no surprise that John Ashcroft decided to file the cases against John Walker Lindh and Zacarias Moussaoui in the Richmond district court. Ashcroft knew he would get more favorable appellate treatment from the Fourth Circuit, widely heralded as the most conservative circuit in the country.

The revelations of Haynes' apologies for torture may not sit well when U.S. Senators, who must give their advice and consent to Bush's nominees, consider Haynes' nomination. Pictures and accounts of torture at Abu Ghraib prison, Guantánamo Bay and Afghanistan may have poisoned the well for William Haynes.

The Senate has confirmed 198 of Bush's judicial nominees, bringing the vacancy rate to its lowest level in years. Nevertheless, in a campaign trip to Senator John Edwards' home state of North Carolina and to Michigan, Bush claimed that Democrats were unfairly obstructing his judicial nominations.

Edwards' tough questioning of Charles Pickering, Bush's nominee to the Fifth Circuit Court of Appeals, was instrumental in the defeat of Pickering's nomination. Bush, however, circumvented the Senate's constitutional role in the selection of judges by appointing Pickering anyway during a Congressional recess.

Pickering's checkered past includes his article explaining how to strengthen Mississippi's statute criminalizing interracial marriages. He also cast several votes as a state senator impeding the full extension of electoral opportunities to African-Americans. Pickering voted for a constitutional convention to overturn Roe v. Wade. Perhaps his most controversial action as a federal district court judge involved his threats and unethical communications to force prosecutors to drop a charge against a man convicted of burning a cross on the lawn of an interracial couple with a small child.

Bush also ran an end run around the Senate by appointing Bill Pryor to the Eleventh Circuit Court of Appeals. Pryor has expressed extreme hostility to a woman's constitutional right to reproductive choice. He called Roe v. Wade "the worst abomination of constitutional law in our history."

But Pryor's contempt isn't limited to women. When he went to federal court to try to overturn a consent decree protecting abused and neglected Alabama children, he told reporters: "It matters not to me whether or not [my actions protect children]. My job is to make sure the state of Alabama isn't run by [a] federal court. My job isn't to come here and help children."

Pryor fits nicely into Bush's mold for right-wing Christian ideologues. Judge Pryor said that the challenge of this millennium will be to "preserve the American experiment by restoring its Christian perspective."

Bush's recess appointments of Pickering and Pryor were unprecedented, as both nominations had been rejected by the Senate. This so incensed Democratic senators that they held up several of Bush's other pending judicial nominations. In May, Bush struck a deal with the Democrats. He agreed not to make recess appointments; the Democrats consented to allowing the votes to proceed on the 25 mostly "noncontroversial" pending nominees.

By a vote of 51-46, however, the Senate last week confirmed James Leon Holmes for a seat on the Eastern District of Arkansas, a federal district court. Holmes' anti-woman and anti-choice views were so extreme that Republican Senators Hutchison, Chafee, Snowe, Collins, and Warner crossed party lines and voted against him.

Bush's nomination of Holmes became a lightning rod due to his views on the subservience of women. In a 1997 article in a Catholic newspaper, Holmes wrote: "The wife is to subordinate herself to her husband" and "the woman is to place herself under the authority of the man."

Holmes has compared legalized abortion to the Holocaust, and said: "I think the abortion issue is the simplest issue this country has faced since slavery was made unconstitutional. And it deserves the same response." He has even dismissed the rape and incest exception by inventing the preposterous claim that "the concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami."

In fact, studies estimate that between 25,000 and 32,000 women each year become pregnant as a result of rape in the United States, but only about 50 percent of these pregnancies end in abortion. And it has only snowed once in Miami in the last century.

Holmes blames the feminist movement for what he considers a whole host of immoralities: "It is not coincidental that the feminist movement brought with it artificial contraception and abortion on demand, with recognition of homosexual liaisons to follow. No matter how often we condemn abortion, to the extent we adopt the feminist principle that the distinction between the sexes is of no consequence and should be disregarded in the organization of society and the Church, we are contributing to the culture of death."

Bush's pending judicial nominees for federal circuit court appointments include Texas Supreme Court Justice Priscilla Owen, who voted to benefit Halliburton and Enron after taking campaign contributions from them. He has also nominated California Supreme Court Justice Janice Rogers Brown, whose decisions have shown great hostility to affirmative action, the rights of workers, gays, senior citizens and the disabled, to protecting children from lead poisoning, and to the right of choice. Two hundred-fifty law professors, including this writer, signed a letter to the Senate Judiciary Committee urging rejection of Brown's nomination.

The Alliance for Justice, which monitors Bush's nominations for federal judgeships, has set forth alternative criteria for evaluating the record of a judicial nominee: He or she should have demonstrated a commitment to protecting the rights of ordinary Americans, rather than placing the interests of the powerful over those of individual citizens. The nominee must have fulfilled his or her professional obligation to work on behalf of the disadvantaged. His or her record should show a commitment to the progress made on civil rights, reproductive freedom, and individual liberties. Or the nominee should have manifested a respect for the constitutional role Congress plays in promoting civil rights and health and safety protections and ensuring recourse when these rights are breached.

Many of George W. Bush's nominees fail to satisfy any of these requirements. He has sought out ideologues who meet a litmus test for pleasing his right-wing religious backers. If Bush is elected president in November, we can expect him to mold the federal judiciary – and probably the Supreme Court – in his own image. A frightening thought.

Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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