Ordering the Courts: Right Wing Attacks on Judicial Independence in 2000

Right Wing Activity at the Federal Level

Particularly during the last half of the Clinton Administration, as documented in previous People For the American Way Foundation (PFAWF) reports, right-wing groups, such as the Free Congress Foundation and the Eagle Forum and their congressional allies, escalated their attacks on the federal courts and judicial independence. By the beginning of 2000, these efforts had already taken a significant toll. At that time, there were 78 judicial vacancies on the Federal courts, almost the same number as when Chief Justice Rehnquist specifically criticized the Senate for inaction on nominations several years earlier.34 Twentyseven long vacant judgeships were declared “judicial emergencies” by the Administrative Office of the U.S. Courts.35 Chief Judge Carolyn Dineen King of the 5th U.S. Circuit Court of Appeals, covering Texas, Louisiana, and Mississippi, declared a circuit-wide judicial emergency in October 1999, explaining that the court was “so far below our authorized strength that the timeliness and quality of our work will be jeopardized.”36 At the same time, 35 judicial nominees were awaiting Senate action, including several that had been languishing for more than two years.

Nevertheless, right-wing groups urged the Senate to stop all judicial confirmations for the remainder of President Clinton’s term. In 1999, Phyllis Schlafly’s Eagle Forum invoked the Columbine shootings in a “Court Alert” that called for the Senate to block all of Clinton's judicial appointments, insinuating that liberal judges were in some way responsible for the tragedy. Other far-right groups joined the Eagle Forum’s call to “just say no” to all Clinton nominations, and right-wing Senators responded by proclaiming that they would seek to prevent votes altogether on Clinton nominees. For example, on December 20, 1999, Senator James Inhofe and 12 other Republican Senators threatened to block all pending judicial nominees, allegedly because of their concerns about a recess appointment the president had made to the National Labor Relations Board.

Right-wing groups continued to push for the defeat of numerous individual nominees, including Marsha Berzon, Richard Paez, and Bonnie Campbell, even accusing some of them of being anti-Christian. For example, District Court Judge Richard Paez of Los Angeles, a Hispanic American, was originally nominated to the 9th U.S. Circuit Court of Appeals in January 1996. The Senate Judiciary Committee, however, took no action on his nomination for more than two years. Then in 1998, the committee finally held a hearing on his nomination and approved it, but the Senate leadership refused to allow a full Senate vote. President Clinton nominated him again in January 1999, but the Senate still refused to take action. Numerous right-wing groups opposed Paez, including the Christian Coalition, the Free Congress Foundation, the Eagle Forum, Concerned Women for America, Focus on the Family and the Family Research Council, all of which called for the Senate to reject his nomination.37 Finally, after pressure mounted against the Senate for its continued stalling of federal judicial nominees, Paez received a vote and was confirmed in March 2000, more than four years after he was nominated.

For its part, the Eagle Forum opposed not only Paez’s nomination, but also the nominations of Bonnie Campbell to the 6th U.S. Circuit Court and Marsha Berzon to the 9th U.S. Circuit Court of Appeals, along with any and all of President Clinton’s nominees in 2000, repeatedly calling on the Senate, through its “Court Watch” web site and e-mail alerts, to confirm “NO MORE CLINTON JUDGES!”38 Berzon finally received a vote and was confirmed in March of 2000. Campbell, a respected Justice Department attorney who received support from both Democratic and Republican Senators, was attacked by the Eagle Forum for her allegedly “feminist ties,” “rabid proabortion stance,” and “extremist opposition to Christianity.”39 Campbell’s nomination was ultimately stalled in committee and she never received a vote in 2000.

Another example concerns the continuing fight over the 4th U.S. Circuit Court of Appeals. In its entire history, until 2001, the 4th Circuit had never had a non-white judge. Rightwing Senator Jesse Helms has repeatedly used his power to block African-American nominees to the court. The August 1999 nomination of James A. Wynn, who would have become the first African-American judge to serve on the 4th Circuit, was Clinton’s second attempt to integrate the court, which covers the Carolinas, Maryland, Virginia and West Virginia. An earlier African-American nominee to the court, James A. Beauty, Jr., was approved by the Senate Judiciary Committee but was blocked from reaching a full Senate vote by Helms. Helms also blocked Wynn’s nomination, this time before Wynn even received a hearing from the Judiciary Committee. Two other African-American nominees, Roger Gregory and Andre Davis, were nominated to the 4th Circuit in 2000, but neither received a hearing. For years, Helms and Strom Thurmond blocked Clinton’s nominees to the 4th Circuit by claiming the court did not need more judges. When President George W. Bush took office, however, both Helms and Thurmond switched their positions, with Helms now “look[ing] forward to working with the Bush administration on matters regarding the 4th Circuit,” and Thurmond suggesting U.S. District Judge Dennis W. Shedd for a spot on the court.40

During the Congressional recess in December, President Clinton appointed Gregory to the 4th Circuit, desegregating the court for the first time in its history. As a recess appointee, Gregory would only be able to serve until the end of the 2001 Congressional session, unless he is subsequently confirmed by the Senate. Thus, before he left office on January 20, 2001, President Clinton re-nominated Gregory, along with Helene White, Bonnie Campbell, and six other nominees who had never received a vote in the Senate.

13 Right-wing groups, however, immediately criticized the action. The Eagle Forum and the Family Research Council attacked the Gregory appointment and announced their opposition to his potential confirmation, as well as to the confirmation of Helene White, Bonnie Campbell, and other long-delayed nominees they labeled as part of the “Gregory Gang.”41 Furthermore, both groups are participating, along with the Free Congress Foundation, in an effort announced last September called the “Courting Justice Campaign.” Aimed at so-called liberal activist judges, the campaign is a framework designed to help grassroots activists meet the “real and relevant challenge … of radically reforming the federal judiciary….”42 The campaign focuses on “organization,” “education” as well as “activation,” which, among other things, calls for limiting the decision-making power of federal judges and “urge[s] elected officials to consider impeachment of federal judges…”43

In significant measure right-wing groups and their allies succeeded in their attempts to stall federal judicial confirmations in 2000. At the end of 2000, the Senate had confirmed only 39 judicial nominees and allowed 42 other nominations, half of whom were women or minorities, to expire at the end of the 106th Congress. In all, approximately 100 federal court vacancies remain to be filled by President Bush. The president has already taken action relating to nominations that has received widespread praise by right-wing groups, including withdrawing the nominations of Gregory, Campbell and other Clinton nominees, and determining that the American Bar Association would no longer review the qualifications of prospective federal judges prior to their nominations.

Ever since Supreme Court nominee Robert Bork was rated “not qualified” by four of the ABA panel’s 15 members in 1987, the right-wing Federalist Society has sought to curb the organization’s role in evaluating the qualifications of those under consideration for appointments to the federal judiciary. Though Bork received an overall rating of “wellqualified” (the highest possible rating) from the group, the Federalist Society has long questioned the “politicization of the ABA” and, in 1992, embarked upon an “extensive investigation” of its role and activities44 Beginning in 1996, The Federalist Society launched its “ABA Project,” which was designed to assess the activities of the ABA and determine whether they were “simply just another special interest group advancing a partisan political agenda.”45 Less than six months later, in February 1997, Senator Orrin Hatch, Co-Chairman of the Federalist Society’s Board of Visitors, ended an official ABA role in the Senate Judiciary Committee’s confirmation process (although the ABA continued its pre-nomination review of nominees until the 2001 action by President Bush).

Founded in 1982, the Federalist Society claims to be little more than a “debating society,” though in reality it is a network of law students, lawyers and scholars intent on countering “orthodox liberal ideology” and creating “a conservative intellectual network that extends to all levels of the legal community.”46 In its early years, the Federalist Society chapters at Yale and the University of Chicago law schools received faculty assistance from Robert Bork and Antonin Scalia, respectively, and the organization has since grown to include over 5,000 law students at approximately 145 law schools, plus a lawyers’ division with chapters around the country. Those sitting on the Federalist Society’s board include Robert Bork, Orrin Hatch, C. Boyden Gray, and Edwin Meese, and other high profile members include Ken Starr, Linda Chavez, and James Bopp, counsel to the National Right to Life Committee and the Christian Coalition.

Several key members of President Bush’s Cabinet and administration are also members of the Federalist Society, such as Attorney General John Ashcroft; Solicitor General-designate Ted Olson (who also sits on its Board); Energy Secretary Spencer Abraham and his designated top lawyer, Lee Liberman Otis; Attorney General John Ashcroft’s designated top legal policy specialist Viet Dinh; and Interior Secretary Gale Norton, who was once honored as the Federalist Society’s Young Lawyer of the Year. Furthermore, a number of key staff members in the White House Counsel’s office are Federalist Society members.

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