Appeals Court Nominees Give Clear Signal of Trouble to Come

As a presidential candidate, George W. Bush secured the enthusiastic support of Religious Right political leaders by telling them that he would appoint Supreme Court justices in the mold of Antonin Scalia and Clarence Thomas. As noted previously, if President Bush makes good on that pledge, far-right political groups will have succeeded in their ultimate quest. A Supreme Court with a Scalia-Thomas majority would likely give right-wing leaders long-term victories on a wide range of issues, including dismantling women’s constitutional right to privacy and reproductive choice and further undermining the separation of church and state.

There is no evidence that President Bush intends to abandon his goal of using the federal courts to turn back the clock. Indeed, there is powerful evidence to the contrary. A number of his appeals court nominees are among the nation’s most aggressive proponents of the neo-states’ rights judicial philosophy, and have advocated for an end to reproductive choice, overturning federal laws protecting the rights of people with disabilities, dismantling key protections of the federal voting rights act, and more.

Among the administration’s appeals court nominees:

  • Carolyn Kuhl, a Federalist Society member and currently a California state trial court judge, has been nominated to the U.S. Court of Appeals for the Ninth Circuit. While in the Justice Department under the Reagan Administration, Kuhl urged the Supreme Court to overturn Roe v. Wade as “flawed.” She also played a key role in convincing then-Attorney General William French Smith to reverse prior policy and support the granting of tax-exempt status to Bob Jones University despite its racially discriminatory practices. (Her position was rejected by an 8-1 ruling of the Supreme Court.) Kuhl has been widely criticized for a ruling in which she dismissed the right to privacy claims of a breast cancer patient whose doctor permitted a drug company salesman to watch her breast and abdominal exam. Her ruling was unanimously reversed on appeal. Kuhl’s nomination has been approved on a party-line vote by the Judiciary Committee; she is awaiting floor action in spite of opposition from both California Senators Dianne Feinstein and Barbara Boxer.
  • Priscilla Owen, a Federalist Society member and currently a justice on the Texas Supreme Court, was nominated to the U.S. Court of Appeals for the Fifth Circuit. Owen is at the far right wing of the conservative Texas court, further to the right than President Bush’s own appointees to that court when he was governor. In one case in which Owen dissented, then-Texas Supreme Court Justice Alberto Gonzales - who is now chief White House counsel - warned that adopting the dissenters’ view would be an “unconscionable act of judicial activism.” (This was only one of 11 cases in which Gonzales criticized or joined other justices’ criticism of positions taken by Owen during the short time they served on the court together.) In another dissent, Owen effectively sought to rewrite an important state civil rights law to make it much harder for employees to prove that their rights were violated. Owen’s confirmation was rejected by the Senate Judiciary Committee on September 5, 2002; in an unprecedented move, she was renominated by President Bush this year. Her confirmation is being blocked by a Senate filibuster.
  • Jeffrey Sutton, an officer in the Federalist Society’s Separation of Powers and Federalism practice group, was narrowly confirmed by the Senate to a seat on the U.S. Court of Appeals for the Sixth Circuit. Sutton has been one of the nation’s most aggressive advocates for severely limiting federal protections against discrimination and injury based on disability, race, age, sex, and religion. More than 70 national organizations and over 375 regional, state, and local groups opposed his confirmation. Sutton was confirmed by a vote of 52 to 41 on April 29, 2003.
  • Terrence Boyle, a former staffer to Senator Jesse Helms and a district court judge in North Carolina, has been nominated to the U.S. Court of Appeals for the Fourth Circuit. Civil rights groups have criticized Boyle for his right-wing judicial activism in civil rights cases. Boyle twice ruled that congressional redistricting in North Carolina was unconstitutional because it favored minority voters, but was reversed both times by the Supreme Court, once in a unanimous ruling. In another case, Boyle refused to accept a settlement of a Justice Department sex discrimination claim against a North Carolina agency, even though the state had agreed to the settlement. He later allowed the state to withdraw from the settlement, a ruling reversed by the court of appeals.
  • Miguel Estrada, a Federalist Society member and D.C. lawyer, was nominated to the D.C. Circuit Court of Appeals. His confirmation has been opposed by the Congressional Hispanic Caucus and a large group of Latino legal and civil rights organizations and community leaders. Estrada has been criticized for extensive efforts to defend so-called anti-loitering laws, which have been shown to have a disproportionately negative effect on African-Americans and Latinos; in one case, he argued that the NAACP did not even have standing to challenge such an ordinance. A former supervisor in the Solicitor General’s office concluded that Estrada “lacks the judgement” and is “too much of an ideologue to be an appeals court judge.” Estrada and the Bush administration have refused to fully answer a number of important questions asked by senators or provide relevant memos from his tenure at the Justice Department. Estrada’s confirmation is currently being blocked by a Senate filibuster.
  • Alabama Attorney General Bill Pryor is not only one of the nation’s most aggressive advocates for a states’ rights approach to the Constitution, but he has also used his office in an effort to push the law far to the right. As state Attorney General and as a leader in the Federalist Society, Pryor successfully urged the Supreme Court to roll back the clock on federal protections against age discrimination and discrimination against people with disabilities. Pryor has urged restrictions on federal authority even more extreme than those adopted by the narrow Supreme Court states' rights majority. For example, Pryor had urged the Court to rule that states could not be sued for money damages for violating the Family and Medical Leave Act, which would have left millions of state employees with no real recourse for violations of that law. In a recent 6-3 ruling, the Court rejected Pryor's argument. Pryor has urged Congress to consider repealing Section 5 of the Voting Rights Act, calling it “an affront to federalism and an expensive burden that has outlived its usefulness.” Pryor believes that it is acceptable to imprison gay men and lesbians for having consensual sex in the privacy of their own homes, and has filed an amicus brief urging the Supreme Court to uphold Texas’ “Homosexual Conduct Law.” In his brief, he has equated private consensual sex between same-sex couples with “activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.” Pryor is a staunch opponent of a woman’s right to reproductive choice and has stated that Roe v. Wade is “the worst abomination of constitutional law in our history.” Pryor opposes genuine church-state separation and among other things has supported a state judge’s official sponsorship of sectarian prayers before jury assemblies.
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