Bush Appointees to the Federal Appeals Court Often Seek to Restrict Individual Rights, Access to Justice, and Congressional Authority

A report from People For the American Way Foundation documents that concerns raised about Bush nominees to the federal appeals courts have been well-founded, as many of those judges now sitting on the bench wrote or joined opinions this year seeking to significantly limit congressional authority, protection of individual rights, and access to justice.

“Too many of President Bush’s appeals court nominees have had records of indifference or outright hostility to individuals’ rights and their ability to protect their rights through the courts,” said People For the American Way Foundation President Ralph G. Neas. “We now have more evidence that those who raised concerns about many of these nominees were right to do so.”

According to the report, an update to an earlier report covering the initial years of Bush judges, in divided cases decided during the first eight months of 2004, Bush-nominated appeals court judges wrote or joined almost 50 opinions seeking to limit congressional authority and the protection of constitutional, environmental, consumer, and individual rights.

Notably, many of the cases examined in the report document that appeals court judges nominated by President Bush have prevented or sought to prevent individual Americans from presenting their claims to a jury. In a disturbing pattern, judges often misused, or tried to convince their colleagues to misuse, summary judgment procedures to prevent a case from even being heard, in spite of evidence that should have allowed cases to go forward. Abuse of summary judgment prevents individuals challenging the actions of the government, powerful corporations, and other institutions from even having their day in court.

Opinions by Bush-nominated appeals court judges, often written in dissent, sought to:

• overturn a California city’s “living wage” ordinance
• strike down as unconstitutional the application of an important provision of the Endangered Species Act
• make it more difficult for victims of discrimination in employment to obtain punitive damages and for victims of sexual harassment or retaliation in the workplace to sue their employer
• make it harder to bring claims of race discrimination in lending
• deny fired workers in their 50s and 60s the opportunity to present claims of age discrimination, even though there was evidence in one case that the company president had directed that an employee be fired because of his age and in another case that the company had systematically removed employees in their fifties in order to replace them with much younger workers
• deny protections to the disabled under the Americans with Disabilities Act and to workers who had been fired in violation of federal law
• prevent a polio victim from bringing a claim for wrongful denial of health insurance benefits
• stop a professor from even having a chance to present her claim of unequal pay due to sex discrimination, despite evidence that supported her
• deny the right of citizens harmed by corrupt police officers to sue police supervisors who likely knew about but failed to investigate the corruption
• uphold a county sheriff’s practice of broadcasting live video on the Internet of pre-trial detainees housed in the county jail

“Federal judges have real power to affect peoples’ lives and legal protections,” said Neas. “That is why it is important for senators to continue to take seriously their constitutional obligation to scrutinize federal judicial nominees to ensure that they have demonstrated a commitment to upholding individuals rights, legal protections, and access to justice.”

A note on methodology:
The report updates a January 2004 report, “Confirmed Judges, Confirmed Fears,” by reviewing cases from January 1 through August 31, 2004 participated in by Bush-nominated appellate judges that raise issues concerning congressional authority as well as all civil cases raising significant issues of constitutional liberties, civil rights, employment discrimination, consumer rights, privacy, environmental protection, congressional authority, access to justice, and similar maters involving the rights and interests of ordinary Americans. The report includes only cases in which the court’s decision was divided, making the role of individual judges potentially decisive. The report includes all cases that meet these criteria, including some cases in which Bush nominees disagreed with each other and some cases in which Bush nominees sought to protect individual rights. The inclusion of a case in this report does not imply that People For the American Way Foundation has a position on the case, only that it met the above criteria for inclusion.