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Bush’s Judicial Nominations are Hardly Mainstream
by Gene C. Gerard
February 17, 2005

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President Bush has re-nominated seven candidates for the federal appeals courts. Each was blocked by Senate Democrats during his first term. He also sent back to the Senate five other nominees for the federal appeals courts whose confirmations were slowed because of Democratic concerns regarding their legal backgrounds. Bush has accused Democrats of blocking votes on so many of his nominations that they have created “judicial emergencies.”

In reality, Bush has had more judicial nominees approved than in the first terms of Presidents Clinton and Reagan, and the administration of his father. Of the 214 nominees sent to the Senate for a vote during his first term, Democrats blocked only ten, using the filibuster. As such, 95 percent of Bush’s nominees have been approved. By contrast, from 1995 to 2000, while Republican Senator Orrin Hatch was chairman of the Judiciary Committee, the Senate blocked 35% of Clinton’s circuit court nominees.

Bush has repeatedly said that all of his nominees are well qualified to serve on the nation’s courts. He has said, “They are of the highest caliber. These are superb nominees.” And he has stressed that “they represent mainstream values.” However, a review of his nominees indicates that most of them could hardly be construed as holding mainstream legal and public policy ideas. Many, in fact, have extremely conservative views.

Perhaps the most conservative nominee is California Justice Janice R. Brown. She opposes Social Security, calling it part of the government’s “socialist revolution.” As a strong opponent of state and local authority, she characterized a city ordinance requiring some housing to be made available to the poor, elderly, and disabled as the theft of private property. She also indicated that racially discriminatory speech in the workplace is protected under the First Amendment right to free speech, even when it meets the legal definition of harassment. In a case involving far-reaching drug testing by an employer, she ruled for the employer, despite the California Supreme Court and the U.S. Supreme Court having rejected the testing as unconstitutional. She also argued that the First Amendment should permit corporations to make false or misleading representations without legal ramifications.

Priscilla Owen, a Justice on the Texas Supreme Court, once argued for a very narrow view of a state law regarding the ability of minors to obtain an abortion without notifying a parent. Her argument was so radical that fellow justice Alberto Gonzales, now U.S. Attorney General, said that agreeing with her legal argument would be an “unconscionable act of judicial activism.” On a case in which the Texas Supreme Court reversed a law regarding the Texas water code, she disagreed, arguing that landowners are exempt from environmental regulations that are inconsistent with how they wish to use the land. Other rulings would have made it difficult for employees to prove racial or sexual discrimination. In another case, her ruling would have prevented a woman from suing a corporation for a rape committed by a sales representative for its distributor.

Alabama Judge William Pryor has called laws prohibiting gender discrimination in public education “antidemocratic.” He strongly defended the practice of handcuffing prisoners to hitching posts during summer as a form of punishment. He has advocated allowing states, based on a simple majority vote, to decide issues concerning abortion, gay rights, and school prayer, even if it violated constitutional rights. He filed a brief with the U.S. Supreme Court supporting a law that permitted homosexuals to be imprisoned for consensual sex in the privacy of their homes, comparing this to laws prohibiting sex with animals and children.

Judge Terrence Boyle of North Carolina has twice had rulings reversed by the U.S. Supreme Court because he allowed congressional redistricting that disenfranchised black voters. He also indicated that states should not require equal employment opportunity for women if that state’s “culture” has discouraged women from working in certain professions. He has ruled that an employer was exempt from the Civil Rights Act of 1964, which protects against job discrimination based on race and sex.

David McKeague, a judge in Michigan, ruled that an employer could terminate an HIV-positive employee without trying to accommodate his disability. Another ruling, which allowed substantial logging without the state’s mandated environmental analysis, was reversed by an appellate court which called his ruling “arbitrary and capricious.”

Although judicial nominees have traditionally had extensive experience, William Myers of Idaho has never been a judge. He spent 12 years as a lobbyist for mining and cattle corporations. In 2001 he became the chief legal advocate for the Interior Department. In this role, he has been criticized for overturning and eliminating regulations designed to protect the nation’s public lands from corporate interests.

William Haynes is the chief legal counsel for the Defense Department. He was the principal author of the Bush administration’s handling of enemy combatants. In this capacity, he denied Geneva Convention protections to those captured during battle. Although he was responsible for the oversight of legal standards for military personnel, he failed to prevent, and possibly encouraged, the torture and mistreatment of combatants in Iraq, Afghanistan, and Guantanamo Bay. Bush has complained about Democrats who blocked some of his nominations, saying, “I believe that some senators are doing this because they don’t appreciate the fact that I named judges who will faithfully interpret the law, not legislate from the bench. They apparently want activist judges who will rewrite the law from the bench.” But it’s clear that many of his nominees have done just that. Only they have been conservative activists, and those are the types of judges that Bush approves of. But they certainly are not mainstream.

Gene C. Gerard teaches American history at a small college in suburban Dallas, and is a contributing author to the forthcoming book Americana at War. His previous articles have appeared in Dissident Voice, Political Affairs Magazine, The Free Press, Intervention Magazine, The Modern Tribune, and The Palestine Chronicle. He can be reached at

Other Articles by Gene C. Gerard

* Bush’s Budget is at Odds With His Rhetoric
* Iraq’s Election Will Not Guarantee Democracy
* The Politics of SpongeBob