On February 14th, President Bush re-submitted 12 nominees who the Senate had previously failed to approve to fill benches on the federal appeals court. The President had been promising to re-nominate these controversial judges despite repeated statements by Senate Democrats that they would continue to oppose them.

"We should not divert attention from other pressing issues facing this nation to re-debate the merits of nominees already found too extreme by this chamber," commented Sen. Harry M. Reid (D -NV), the Senate Minority Leader.¹ Since the President first took office, the Senate has blocked the nominations of ten judicial nominees considered on the floor, while clearing 204. (In contrast, President Clinton saw 60 of his judicial nominees blocked during his first term.)

Included in this group of re-nominees are Terrence Boyle, Janice Rodgers Brown, Richard Griffin, Thomas Griffith, William Haynes, Brett Kavanaugh, David McKeague, William Myers, Susan Neilson, Priscilla Owen, William Pryor, and Henry Saad. Organizations representing a wide array of issues and groups including women’s rights, civil rights, the environment, service employees, African Americans, and senior citizens have publicly voiced their opposition to many, if not all of the nominees in this group.

Some re-nominees, like Priscilla Owen, have lengthy records as federal or state justices, which were scrutinized during their first nomination process. For example, in a series of cases that involved minors’ access to abortion services, Owen attempted to rewrite the parental consent law to include a requirement that minor’s know the religious arguments against abortion. The opinion was so far outside the mainstream that Attorney General Albert Gonzalez, then her colleague on the Texas Supreme Court, criticized it as "an unconscionable act of judicial activism." ²

Other nominees, however, have records that are not readily accessible for inspection by the Senate. Terrence Boyle, for example, has refused to publish the majority of his opinions. Still, the few cases that are available show that as a North Carolina District Court justice, his decisions have been overturned by the Fourth Circuit Court of Appeals more than 150 times. People for the American Way’s President Ralph G. Neas described Boyle as "a judicial disaster," and says, "he has the worst reversal rate of all the district court judges nominated by President Bush, and his rulings reflect a judicial philosophy that is very damaging to the rights of average Americans." ³

Also re-nominated was Alabama Attorney General William Pryor. Pryor’s history includes defending former Alabama judge Roy Moore in his crusade to display the ten commandments in his court room and decrying Roe v. Wade as "the worst abomination of constitutional law in our history."⁴ Pryor was also the only state attorney general outside of Texas to submit an amicus brief to the Supreme Court in support of the Texas anti-gay sodomy law which the court found to be unconstitutional.

Department of Defense General Counsel William Haynes, re-nominated for a position on the Fourth Circuit, has never served on the bench and has little experience litigating in the courtroom.⁵ At the Defense Department, Haynes has been involved in the process of re-defining torture so that only the infliction of pain equal to that of organ failure or death is prohibited. In addition, he participated in the post 9/11 decisions to hold American citizens as "enemy combatants" with virtually no access to civilian courts or counsel and to hold detainees at Guantánamo Bay without the protections of the Geneva Convention.

The other nominees represent a variety of additional conservative views. For example, California Supreme Court Justice Janice Rogers Brown, re-nominated to the D.C. Circuit Court, is a vocal opponent of the social security system and has referred to the New Deal as a "socialist revolution."⁶ Interior Department Solicitor, William Myers, nominated to fill a vacancy on the Ninth Circuit Court of Appeals, has spent his career lobbying for the grazing and mining industries. He has displayed persistent aggression in dismantling environmental protections. Meyers received the American Bar Association’s lowest passing grade. ⁷

The submission of this group of partisan nominees prompted Alliance for Justice President Nan Aron to comment, "the president’s divisive approach to judicial nominations failed during his last term, yet he continues along the same path, offering rejected and recycled nominees." Aron continued, "this action is a slap in the face to the Senate and a show of contempt for the critical rights and protections that Americans care about most." ⁸

SIECUS will continue to monitor the judicial nomination process and report the findings in our monthly Public Policy Updates.

For more information on judicial nominees: http://www.pfaw.org/pfaw/general/default.aspx?oid=14172

References

1. Michael Fletcher and Charles Babington, "Bush Tries Luck Again With Judicial Nominees," The Washington Post, 15 February 2005, A05.
2. Advocacy Spotlight, Alliance for Justice (22 February 2005), accessed 23 February 2005, http://www.allianceforjustice.org/spotlight/collection/renoms0205.html.
3. New Report: Federal Judge Terrence Boyle Unfit for Promotion to Court of Appeals, People for the American Way (23 February 2005), accessed 23 February 2005, http://www.pfaw.org/pfaw/general/default.aspx?oid=17979.
4. Advocacy Spotlight.
5. Ibid.
6. Fletcher and Babington.
7. Advocacy Spotlight.
8. Alliance for Justice Dismayed Over Bush’s Renomination of Highly Controversial Judicial Nominees, Alliance for Justice (14 February 2005), accessed 24 February 2005, www.allianceforjustice.org/news_and_press/press_release_collection/
   collection/renomination0214.html?referrer_level_id=0&ref_color=&ref_name=&inform=1.