Report Documents Impact of Bush-Nominated Appeals Court Judges

Federal appeals court judges nominated by President Bush are threatening and undermining Americans’ rights and liberties, and working to reduce congressional authority to protect those rights and liberties, according to a legal analysis published today by People For the American Way Foundation.

“President Bush has fallen far short in keeping his promise to appoint judges who will interpret the law, not make it,” said People For the American Way Foundation President Ralph G. Neas. “Judges nominated by President Bush and confirmed by the U.S. Senate are undermining Americans’ rights, liberties, and legal protections.”

The report, Confirmed Judges, Confirmed Fears, covers cases decided between September 1, 2004 and May 31, 2006. It provides a significant update to preliminary analyses of Bush-nominated judges that PFAWF published in 2004. The new report documents that troubling trends identified in earlier reviews have continued as more Bush appointees gain more experience and tenure on the appellate courts – more and more opinions seek, sometimes successfully, to cut back broadly on Americans’ rights under our Constitution and laws.

“The cumulative impact of the Bush administration’s ideological approach to judicial nominations is beginning to be felt,” said People For the American Way Foundation Vice President and Legal Director Elliot M. Mincberg. “What we’re seeing is unfortunately exactly what the Federalist Society and White House hoped for when they promoted one ultraconservative ideologue after another to the appeals courts.”

For example, Confirmed Judges, Confirmed Fears reports that two controversial Bush appellate judges – Michael McConnell on the Tenth Circuit and Lavenski Smith on the Eighth Circuit – cast deciding votes in rulings that significantly restricted individuals’ rights under the Family and Medical Leave Act, including one decision that struck down a Department of Labor regulation protecting workers.

In addition, Bush-nominated appellate judges wrote or joined opinions that:

• tried to rewrite legal protection for employees against sexual harassment under Title VII of the 1964 Civil Rights Act, explicitly contradicting the Equal Employment Opportunity Commission and several previous court decisions Lutkewitte v. Gonzales, D.C. Cir. (Judge Brown)

• attempted to significantly weaken Section 2 of the Voting Rights Act by requiring proof of discriminatory intent in voting cases, a requirement that another judge explained was flatly inconsistent with Congress’ language and intent Johnson v. Governor of Fla., 11th Cir. (Judge Pryor)

• cast the deciding vote that the First Amendment did not apply at all to a restrictive municipal “English only” mandate Moldonado v. City of Altus, 10th Cir. (Judge Hartz)

• cast the deciding vote to limit the ability of health clinics to challenge anti-abortion laws Nova Health Systems v. Gandy, 10th Cir. (Judge Tymkovich)

• tried to rule that taxpayers could not sue to obtain restitution of government funds illegally transferred to private universities in violation of the Establishment Clause Laskowski v. Spellings, 7th Cir. (Judge Sykes)

• cast the deciding vote effectively authorizing partisan challengers who targeted African-American precincts to challenge voters, creating what the dissenting judge called a “threat of suppression, intimidation or chaos sown by partisan political operatives.” Summit County Democratic Cent. & Exec. Comm. v. Blackwell, 6th Cir. (Judge Rogers)

• tried to prevent terminally ill patients from seeking to obtain access to drugs partly approved by the FDA when no other government approved treatment options are available Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, D.C. Cir. (Judge Griffith)

Another damaging trend documented in the report is judges preventing, or advocating in dissent to prevent, individual Americans from having their day in court and presenting their claims to a jury. In a number of cases, Bush judges have been specifically criticized by their colleagues for improperly applying the summary judgment standard and denying plaintiffs their day in court despite the existence of important evidence supporting their claims, or for other reasons have tried to throw such cases out of court. Bush-nominated appeals court judges have written or joined opinions that have sought to:

• prevent a female worker from attempting to prove that significant salary disparities between her and male employees violated the Equal Pay Act Ambrose v. Summit Polymers, Inc., 6th Cir. (Judge Sutton)

• deny the family of a murdered 8-year old girl the opportunity to try to prove in court that local officials had helped put her in danger Bright v. Westmoreland County, 3d Cir. (Judge Smith)

• stop an African-American man from pursuing a claim that his constitutional rights had been violated by state troopers engaged in racial profiling Gibson v. Superintendent, 3d Cir. (Judge Van Antwerpen)

• overturn a lower court decision that a female sheriff department employee who had been sexually harassed by the sheriff (who, among other things, called her vagina a “snapper” and stroked “his mustache while telling [her] he was ‘clearing off her seat’”) could pursue a claim that she had effectively been forced to resign Wright v. Rolette County, 8th Cir. (Judge Melloy)

• prevent an African-American employee fired from a Wal-Mart store, who had been called a “lawn jockey” by his supervisor, from trying to prove he had suffered illegal racial discrimination and harassment Canady v. Wal-Mart Stores. Inc., 8th Cir. (Judge Riley)

• stop a Wal-Mart employee at another store from even presenting to a jury her claim that she had been fired because of illegal pregnancy-based employment discrimination Quick v. Wal-Mart Stores, Inc., 8th Cir. (Judge Riley)

It is important to note that decisions are included in this review based on objective criteria described below, not on whether PFAW Foundation agrees or disagrees with the opinions expressed. We do not take a position on every case, opinion, or ruling included in this report.

The report makes clear that judges who received strong bipartisan support have been much less likely to write or join opinions that seek to rewrite the law to damage Americans’ rights. On the other hand, judges who received significant opposition and concern in the Senate — like William Pryor, Janice Rogers Brown, Jeffrey Sutton, D. Brooks Smith, and Michael McConnell — have often written or joined such troubling opinions.

Note on Methodology: We reviewed non-criminal cases in which Bush-nominated appellate judges have participated from Sept. 1, 2004 through May 31, 2006 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 matters involving the rights and interests of ordinary Americans. (We did not include habeas corpus cases raising individual criminal law claims or immigration cases involving the status of individual immigrants.) Because the purpose of this look at President Bush’s appellate judges was to determine whether and to what extent those judges are having an impact on these significant areas of the law, we focused our review on cases in which the court’s decision was divided, making the role of individual judges potentially decisive. Because some of these judges have been on the federal courts for a relatively short period of time, because most appellate decisions are unanimous, and because cases are assigned randomly, some of the Bush-nominated judges have not participated in divided cases in these areas of concern. Our report does not examine the record of Judge Roger Gregory, since he was originally nominated to the Fourth Circuit by President Clinton.