Friday, May 20, 2005


Salon: Here come the judges, again - May 20

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By Dan Noyes and Andy Isaacson

Meet the seven antiabortion, anti-gay, pro-industry Bush nominees who could rise from the ashes of the filibuster.

Prepare for the not-so-magnificent seven. With Republicans poised to pull the trigger on the nuclear option, President Bush's right-wing nominees ride again.

Their return -- all were blocked in the Senate their first time around -- is propelling the government into a crisis, as they prepare to take seats in federal appeals courts, the second highest position in the judicial branch of government, beneath only the authority of the U.S. Supreme Court. Democrats oppose them for their extreme judicial and political philosophy, what they consider a conservative version of "judicial activism."

An assessment of the nominees' records suggests that all consider government regulation a central problem, while they view private enterprise and property a bedrock constitutional right. These nominees are the most visible examples of a judicial nomination trend that the Center for Investigative Reporting discovered in examining all appeals court and court of federal claims nominees during George W. Bush's first term as president.

In the CIR study, 21 of 59 had a history of working as lawyers and lobbyists on behalf of the oil, gas and energy industries. This trend concerns legal scholars, who fear that long-term industry ties may raise questions about the judges' ability to be fair and objective. Rutgers University School of Law professor Jay Feinman told CIR, "Increasingly you will have federal courts with a pro-industry and anti-government perspective."

Some of the nominees' judicial philosophies were shaped while in the service of corporate clients (Owen, Saad, Pryor, McKeague and Myers), and some while working closely with the Republican Party (Pryor, Saad, Brown, McKeague and Myers). Democratic opponents see them potentially eroding public power and expanding private reach, while heartening the religious right on key issues such as abortion.

At stake is no less than Republican domination of all three branches of government -- not only to recast laws, but to extend their impact long after President Bush has left office, and undo a generation of legal precedents. Here's a look at the extremist credentials they would bring to the bench.

William H. Pryor Jr., nominated to the 11th Circuit Court of Appeals

He argued that civil rights for same-sex couples would logically extend to activities like necrophilia and bestiality.

During his seven-year tenure as the attorney general of Alabama (1997-2004), Pryor's unabashed conservativism was legendary. His strong public opinions on a litany of contemporary issues suggest where his judicial opinions might be headed if his nomination is confirmed. He once called Roe vs. Wade "the worst abomination of constitutional law in our history"; in 2002 he argued in the Supreme Court, on behalf of Alabama and four other states, for states' execution of mentally retarded inmates; he termed the Voting Rights Act "an affront to federalism and an expensive burden that has far outlived its usefulness"; and he affirmed in 2003 that extending the civil rights of same-sex couples would logically extend to activities like necrophilia and bestiality. It came as no surprise, then, when he rescheduled a family trip to Disney World to avoid arriving during a "Gay Days" event.

He is considered a leading voice in the modern states' rights movement: "With the New Deal, the Great Society, and the growing federal bureaucracy," Pryor testified at a 1997 U.S. Senate Judiciary Subcommittee hearing, "we have strayed too far in the expansion of the federal government."

Pryor's close ties to industry have been critical in his rise to power. The single largest donor to his 2002 election campaign for attorney general was the Progress PAC, the political action committee of the Alabama Business Council. He founded the Republican Attorneys General Association (RAGA) with "the explicit aim of soliciting funds from the firearms, tobacco and paint industries and other industries facing state lawsuits over cancer deaths, lead poisoning, gunshots and consumer complaints," according to the Washington Post. Mike Moore, attorney general of Mississippi and the first attorney general to sue the tobacco companies, called Pryor "the biggest defender of tobacco companies of anyone I know. He did a better job of defending the tobacco companies than their own defense attorneys."

Pryor stood alone among the 50 state attorneys general in challenging the constitutionality of key portions of the Clean Water Act and the Endangered Species Act, asserting that land use and wildlife protection are "traditional areas of state environmental primacy" that should remain free of federal government regulation. The Forestry PAC of the Alabama Forestry Association contributed $43,500 for his reelection.

Confirmation to the 11th Circuit would put him one step closer to the Supreme Court -- which could be a troubling development for at least one of the court's current members. To a gathering of Federalist Society members in 2000, Pryor once opined, "Please God, no more Souters!"

Janice Rogers Brown, nominated to the District of Columbia Circuit

She is known for her fervent anti-government attacks, and once received a "not qualified" rating from the American Bar Association.

Janice Rogers Brown, a rock song-quoting daughter of an African-American sharecropper, currently sits on the California Supreme Court as its first black woman justice. Prior to Brown's rise to the California Supreme Court, her legal and judicial career was closely connected to the Republican Party, which saw a judicial star in the black conservative. Republican Gov. Pete Wilson appointed her his legal affairs secretary, and then to a seat on the state Court of Appeals in 1994. The legal establishment was unimpressed, though, and prior to her appointment she received a "not qualified" rating from the American Bar Association.

Brown startled many legal observers with her speech in 2000 to the Federalist Society in Chicago, when she warned that, "Where government moves in ... the result is a debased, debauched culture, which finds moral depravity entertaining and virtue contemptible." Brown has denounced President Franklin Roosevelt's Supreme Court as transforming the Constitution into a "significantly different document," and the Democratic New Deal as the triumph of "our own socialist revolution." It is this fervid ideological opposition to government and regulation of private enterprise that causes Democratic opponents to denounce her lack of judicial fairness. Critics fear Brown's anti-government attacks, and opposition to regulation of corporate and financial interests that could block her impartiality on the federal court.

William Myers III, nominated to the 9th Circuit Court

In 2003, a federal court concluded that he had badly misinterpreted federal law.

Myers' long history of working for the law firm Holland & Hart as a lobbyist on behalf of the mining and energy industries has galvanized a broad coalition of environmental, health and consumer groups against his nomination. Democrats fear that he will attempt to give private property rights greater weight in judicial decisions than attempts to protect public lands, water and endangered species. Of particular concern is Myers' nomination to the 9th circuit, whose jurisdiction over the Western states covers many of the same industries whose interests he has spent his career lobbying or representing in court.

Myers served from 2001-03 as solicitor general of the Department of Interior. In 2003, a federal court concluded that Myers had badly misinterpreted federal law in permitting a mining company to operate on public land in California. The National Congress of American Indians, a coalition of more than 250 tribal groups, opposes Myers, claiming that the policies he executed during his tenure at the Interior Department threatened native sites without consulting the tribes involved.

As Salon reported last year, Myers' congressional lobbying in 2000 on behalf of major coal interests resulted in legislation that paved the way for a merger between two major coal companies that was later opposed by the Federal Trade Commission. The commission concluded that the merger was potentially anti-competitive and harmful to consumers and electricity users. These same coal interests routinely have cases before the 9th Circuit Court.

Finally, Democrats on the Senate Judiciary Committee point out that Myers has minimal courtroom experience and has never been a judge. He received a "qualified" rating from the American Bar Association, the ABA's lowest passing grade, with a minority voting "not qualified."

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Salon full article.

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