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National NOW Times >> Fall 2002 >> Article

Bush Packs U.S. Courts with Ultra-Conservative Judges as Senate Rolls Over

by Linda Berg, Political Director

As the parade of right-wing judicial nominees marched through the Senate Judiciary Committee, it became abundantly clear that George W. Bush's campaign rhetoric about bringing a new tone of civility and bipartisanship to Washington was just that, rhetoric.

To date the Bush administration has sent nearly 120 judicial nominations to the Senate; 81 have had hearings and 64 have been confirmed. Only two nominations failed in committee. Yet the very few times progressive groups challenged a nominee's fitness to hold a lifetime appointment because of appalling records on civil rights, women's rights, or disability rights, we were derided by Republican Sen. Orrin Hatch (the administration's mouthpiece) as "Washington smear groups," and there was nary a peep of protest from the Democrats who know better.

The right wing was so offended that some of its judicial nominations have been challenged, that they formed an organization headed by former White House Counsel, C. Boyden Gray, to run television ads targeting Democratic senators who might dare to oppose their judicial hopefuls.

This group, Committee for Justice, has set up a web site featuring a picture of Ralph Neas, president of the People for the American Way, as the obstacle to their court-packing goals. This chilling escalation of the battle to save the courts is reminiscent of web sites that featured pictures of abortion providers, implicitly provoking lethal consequences.

"Let's set the record straight," said NOW Membership Vice President Terry O'Neill. "Out of the long line of right-wing judges considered by the Judiciary Committee thus far, the only nominees the committee rejected were Charles Pickering, who had an abysmal record on civil rights and ethical conduct, and Priscilla Owens, who has a history of using the courtroom to further her narrow beliefs and ideals. Many more deserved to be rejected."

In a 64-35 vote, the Senate confirmed D. Brooks Smith, a Pennsylvania District Court Judge who not only misled the committee in his original confirmation hearing in 1988 about his commitment to resign from a club that overtly excluded women from membership, but who also believes that the Violence against Women Act was unconstitutional, has ruled against the rights of the disabled and in favor of sex discrimination, and has committed numerous ethical violations. And Lavenski Smith, who is rabidly anti-abortion, and even filed suit to prevent abortions from being performed in hospitals, was easily confirmed to the Eighth Circuit Court of Appeals.

As we go to press, only three Circuit Court nominations are being treated as controversial and thus pending before the committee. Dennis Shedd, nominated to the Fourth Circuit Court of Appeals, struck down the Driver's Privacy Protection Act, which was passed in part to protect doctors who worked at abortion clinics from having their addresses released to the public via the Internet. Although Shedd has not released all of his unpublished opinions, our research has not discovered one case where Shedd found sex or race discrimination in employment in his South Carolina district.

Another pending controversial nomination is that of Michael McConnell, a current professor at the University of Utah and nominee to the Tenth Circuit Court of Appeals. As a member of the conservative Federalist Society, Christian Legal Society, and the Becket Fund, McConnell adamantly opposes Roe v. Wade, going so far as signing a 1996 "Statement of Pro-Life Principle and Concern" calling on the Supreme Court to overturn Roe. He opposed the Freedom of Access to Clinic Entrances Act (FACE) and is a staunch supporter of a "radical departure" from the current church-state separation.

Miguel Estrada has been nominated to the U.S. Court of Appeals for the District of Columbia Circuit, which is considered to be the second most powerful court in the nation with exclusive jurisdiction over tax and federal regulatory agency appeals. Little is known about Estrada. He lacks a written record on many controversial issues including abortion and gay rights. Among colleagues he is considered "a conservative ideologue" who has trouble distinguishing between personal belief and the law. The Bush administration hopes that Estrada's Hispanic heritage will force Democrats to overlook his extreme right-wing conservatism and confirm him to the D.C. Circuit.

The now-likely confirmation of Shedd, McConnell and Estrada to their respective Courts of Appeals is only the beginning. The Bush administration is clearly determined to continue nominating enemies of women's rights to the federal bench.

"It will take a massive grassroots effort to convince Senators to take their 'advise and consent' duties seriously," said O'Neill. "Unfortunately, we know that when the inevitable Supreme Court vacancy arises, the Bush administration will nominate one of these right-wing judicial activists to sit on the Court which is the final arbitrator of our rights. We must ensure that our allies in the Senate will filibuster."

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