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IN THIS ISSUE

Front Page

Ms. Paterson Goes to Washington

Statewide Coalition Forms to Keep Extremists Off the Federal Bench

Notes on the Right: Extraordinary Circumstances: The Assault on the Judiciary

Linking Progressive Corporate Law with Social Justice Movements: A "First of Its Kind" Conference

EJS Amicus Brief Charges Unlimited Campaign Spending
Unfair to Communities of Color and the Poor

The Big Money Behind Ward Connerly

Law Review Summaries: Affirmative Action

Staff/Board News and Notes

Newsletter Editors:
Elaine Elinson
Joe Lucero

Email Feedback

Statewide Coalition Forms to Keep Extremists Off the Federal Bench

By David Salniker

It is always dangerous to write a newsletter article on a subject that is moving rapidly. What is written today, may be old news tomorrow. We are now in the throes of a battle to oppose confirmation of extreme conservative judges to the federal bench - a battle that will no doubt continue throughout the Bush administration, culminating in at least one and perhaps two nominations to the U.S. Supreme Court. But whatever comes our way, the Equal Justice Society is on the frontlines - and we have joined our allies in an impressive statewide coalition to monitor, expose and oppose the nominations of extreme judges to the federal bench.

Our coalition, Californians for Fair and Independent Judges, includes more than 50 organizations, including faith based groups, environmental organizations, the disability community, reproductive rights activists and many other social justice organizations. A full listing of the coalition can be found at www.fairandindependentjudges.org.

Since our formation only six months ago, the Coalition has met with representatives of both California Senators, held informational sessions with editorial boards, published op-eds and letters-to-the-editor, organized press conferences and distributed information to members around the state.

Working with national organizations, such as the Leadership Conference on Civil Rights, People for the American Way, and Alliance for Justice, we tap into the most comprehensive and up-to-date information about the judicial nominations.

It was as part of this strong national network that EJS decided to send President Eva Paterson to Washington, D.C. in the crucial days surrounding the "nuclear option" threat. [For the complete story, see Ms. Paterson Goes to Washington.] There is no question that Eva's presence in the Capital was felt. In a two-day sprint, she was on CNN and Air America, and quoted by the New York Times and Washington Post, and via AP - in papers all throughout the country.

What Can We Expect?

The battle lines, sharply drawn until a deal was brokered, may be reinvoked as soon as a Supreme Court vacancy occurs. Despite the compromise reached by 14 "moderate" Democrats and Republicans, three previously rejected nominees, Priscilla Owens of the Texas Supreme Court, Janice Rogers Brown of the California Supreme Court, and William Pryor, a former Alabama Attorney General, were all confirmed in quick succession. We should not be naïve: these are three young, hard-core conservatives who will most likely serve on the Court of Appeals for most of the next two to three decades.

The "deal" did avoid triggering one of the Senate's most historic legislative maneuvers: a vote led by Republican Senate Majority Leader Bill Frist to allow "cloture" of debate by a simple majority, instead of the traditional 60% required for the last two hundred years. This very dramatic legislative maneuver, termed the "nuclear option" by Senator Trent Lott, would have forever changed the rights of the minority party in the Senate to extend debate. In turn, the Democrats threatened to bring Senate business to a halt if the new rule passed. Essentially, the deal allowed the Democrats, for this term of Congress, to maintain the right to filibuster a Supreme Court nominee. This was the "prize" sought by the Democrats - the right to filibuster an extreme conservative on the Supreme Court.

Uninteresting Battle or Great Peril?

For fans of Senatorial history, this may still shape up to be a classic moment, not so different from our historic texts of Calhoun and Webster. Only today's players are not as compelling, and the motives are all about politics and pandering to a Republican power base among the religious right and corporate allies of this administration.

For the public at large, the battle is apparently uninteresting - an esoteric legal fight about courts and judges that are largely unknown. An appalling percentage of the American public know little or nothing about the Supreme Court, cannot name a justice or even know how many judges sit on the court. Fewer still even know the role of U.S. Courts of Appeal and almost none understand the purpose of the filibuster or its history.

But, for civil rights leaders, it is a time of great peril. All the gains won by the civil rights movement, the women's movement, the reproductive rights battles, disability rights organizations and by environmental activists may be eradicated by a few judicial appointments that are pending or likely to made soon. In essence, everything that we have fought for during the last forty years could be undone, either case by case, or perhaps, in a single case - including the very probable reversal of Roe v. Wade.

It is not unusual for nominees to the federal bench to be scrutinized by the Senate and, at times, rejected. This President has received the highest confirmation rate in recent history, higher than every president since and including Jimmy Carter. During Bush's first term, Senate Democrats rejected (by filibuster) 10 out of 204 nominees. 97% of all of his nominees to the Court have been confirmed. By contrast, Republicans blocked 62 of Clinton's nominees. Clinton's confirmation rate, according to the right-wing American Enterprise Institute, was 87.9%.

The Republicans, who were the majority party during much of Clinton's tenure, did not need to resort to the filibuster. They simply blocked the nominees in committee. Apparently the current Republican mantra that the President's choices are entitled to an "up or down" vote was not applicable then. Longtime Senate Judiciary Chairman Orrin Hatch defended a Republican-led filibuster in 1994 by explaining the filibuster is "one of the few tools that the minority has to protect itself and those the minority represents." Frist himself joined a filibuster and voted against cloture on the nomination of Judge Richard Paez in 2000.

Many in the civil rights remember the filibuster as the favorite tool of the Dixiecrats in preventing civil rights legislation in the early 60's. National organizations were divided by the nomination of Clarence Thomas to the Supreme Court. What is the difference today? The bottom line is that all "left" and "right" wing organizations are now clearly focused on the battle for the ideological center of the Supreme Court.

With rare exception, judicial nominees in the past were vetted by Bar Associations and leading legal scholars. Apparently, these are no longer the forums in which to determine judicial qualifications. In recent weeks, Senator Frist took the fight to a convention of the religious right; Pat Robertson declared that Jews and Muslims should not serve in the Cabinet or on the Supreme Court and Vice-President Cheney called for employing the nuclear option if Democrats do not approve all of the President's nominees. The President initiated this battle by deliberately renominating judges that had been specifically rejected by the Senate. This is part of his administration's very deliberate agenda to undo the legal gains of the last half of the 20th century. The president has renominated, among others:

• Janice Rogers Brown, who has indicated that Social Security is unconstitutional;
• William Pryor, who called Roe v Wade the "worst abomination of constituional law in our history;"
• William Meyers, III, who compared federal laws protecting the environment to the "tyranny" of King George III over the colonies.
• Prisicilla Owen, who took campaign money from Enron and Halliburton and then ruled in their favor.

The Work Ahead

The coalition and its national partners are dedicated to bring reason back to the judicial process. We seek confirmation of nominees who will defend decades of legal precedent and social justice progress on civil rights, privacy and reproductive choice, religious liberty, environmental protection, and worker and consumer safety. And we seek to oppose nominees that would undo these protections and elevate property rights above civil rights and impose the passion of a religious following at the cost of undermining the separation of Church and State and our Constitution.

For detailed information about the status of each nomination, please check the website of the Californians for Fair and Independent Judges www.fairandindependentjudges.org as well as www.independentjudiciary.org (a project of Alliance for Justice); www.pfaw.org (People for the American Way); and www.lccr.org (Leadership Conference on Civil Rights.)

There may have been a temporary "deal" to save the Senate, but the fight to save the Supreme Court is just beginning!