In law, words are used as weapons — to advocate for or to injure civil rights, to uphold or castrate the Constitution. A battle over President George W. Bush's nominations to the conservative 5th Circuit Court of Appeals, which has jurisdiction over Texas, Mississippi, and Louisiana, has focused on two nominees, including one from the Lone Star State.
Judges Priscilla Owen and Charles Pickering have already drawn fire (Pickering recently was ousted from the running) from Democrats and progressives who claim that the future of many civil rights and constitutional freedoms is at stake. Owen is also under scrutiny for her ties to big business, including Texas energy giants Valero and Enron.
Bush has nominated Owen, a Texas Supreme Court Justice, for one seat, which has been vacant since 1997. The history of this seat is murky: When the Republicans controlled the Senate Judiciary Committee and President Bill Clinton resided in the White House, the confirmation process for federal judges came to a standstill. Although Clinton successively nominated two Hispanic judges for the seat, Republicans refused to provide even a hearing in the Senate Judiciary Committee for a total of almost four years. One candidate withdrew his nomination in frustration; the second saw his nomination withdrawn by Bush. The appointment of a Hispanic judge would have helped remedy the serious under-representation of minorities in the 5th Circuit judgeships. (The population in the jurisdiction of the 5th Circuit Court has the largest proportion of minorities — 45 percent — of any circuit.) Instead, Owen, one of the two most conservative Texas Supreme Court Justices, could become the next judge if confirmed by the Senate in the next month.
According to the Center for Responsive Politics, Owen, a Republican, not only received Bush's nomination, but also donated $1,000 to his presidential campaign. Her ties to energy — the Bush administration's pet project — include an $875 contribution to Valero Corporation, ardent supporters of G.W.
According to Texans for Public Justice, Owen accepted $8,600 in contributions from Enron, which calls into question her crafting of a unanimous Texas Supreme Court opinion in 1996 that saved Enron $225,000 in taxes.
Opposition to Owen's nomination is growing. Texans for Public Justice adds that, "Owen's judicial opinions reveal a jurist who harbors a troubling insensitivity to discrimination, employee rights, the public's right to know, reproductive rights and environmental protection." The Director of Texas Watch, a consumer group, went further: "As a Texas Supreme Court Justice, Priscilla Owen has proven herself to be a strong advocate for big business. She has not been a friend of consumers, workers, or Texas communities. I think that it is fair to assume that she would continue to show favoritism to corporate interests on the federal bench."
People who care about reproductive rights are even more concerned. Kae McLaughlin of Texas Abortion and Reproductive Rights Action League says that abortion rights are hanging by a thread in the federal courts. Even Bush's White House Counsel, Alberto Gonzales (when he was still a judge on the Texas Supreme Court), called Owen's narrow reading of the judicial by-pass law for minors seeking an abortion, "an unconscionable act of judicial activism." McLaughlin concluded that Owen is "too extreme for a lifetime appointment."
Last month, even the Senate Judiciary Committee apparently thought Pickering was too extreme. The committee — which includes Texas' Kay Bailey Hutchison — rejected Bush's nomination of Pickering, a judge from Mississippi, to that court. Pickering has made a political and judicial career out of opposing civil rights. As a Democratic state senator in Mississippi, he supported state funding for the Mississippi Sovereignty Commission, whose goal was to monitor, infiltrate, and "neutralize" the Civil Rights Movement in Mississippi.
While a federal judge in a district court in Mississippi, he continued his staunch opposition to civil rights. During the Senate Judiciary Committee hearings, Pickering stated that he believed that most employment discrimination cases that come before him are "without merit." Marcia D. Greenberger of the National Women's Law Center called Pickering's statement a "demonstrably erroneous preconceived notion." And as if to illustrate his party's insensitivity to civil rights, the ranking Republican on the Senate Judiciary, Orrin Hatch (R-Utah) called the public hearing of Pickering's record, opinions, and philosophy a "lynching."
Under the leadership of Republican-nominated judges in the 1950s, '60s, and '70s, the 5th Circuit Court of Appeals blazed a trail supporting civil rights and desegregation. Ironically, the white establishment, who opposed desegregation, blamed the Democratic Party for its support of the Civil Rights movement and shifted allegiances to the Republicans.
Since the Reagan era, Republican nominees to the federal courts have promised to no longer "legislate from the bench." That catch phrase has become a code word for protecting civil, women's, consumers', and/or workers' rights. Recently, Bush said, "I want people on the bench who don't try to use their position to legislate from the bench. We want people to interpret the law, not try to make law and write law."
To grasp the hypocrisy of that claim, remember that Bush most likely would not be president if it were not for perhaps the most profound case of "judicial activism" U.S. history: the Supreme Court's intervention in the 2000 election.
Our federal court system contains three tiers. All cases start in the district court, then, if the parties are not satisfied with outcome, they can move on to the Court of Appeals. The last stop ostensibly is the United States Supreme Court, but the nation's highest court hears very few cases — in 2000, it heard just 74 — and reaching that level is difficult. By comparison, in 2000, federal appellate courts decided more than 27,000 cases; they often have the last — and critical — word.
According to the Leadership Conference on Civil Rights, for many Americans, the federal courts are the first line of defense against violations of dearly held constitutional principles; for others, it is "the last bastion of hope in a system that has marginalized, mistreated or simply ignored them."
Bush's nominations to the federal bench are important because whoever gets that seat can set legal precedents with far-reaching ramifications. To try to ensure that judges aren't deciding cases based on their own biases, they rely on precedents, opinions from past judges that have become rules. Bush's appointments will sit on the bench for life, ruling on issues that concern Americans' constitutional rights long after Bush has retired to his ranch in Crawford. Their rulings will become precedents.
The precedents set by the 5th Circuit Court become law unless reversed by the Supreme Court. A good example of this, according to Ed Piña, Director of the local chapter of the American Civil Liberties Union, was last year's case involving San Antonio Police Officer Onofre Serna.
Serna was working in SAPD's Downtown foot and bike patrol unit when he spoke out against orders that he had allegedly received from his supervising officer. His orders were to "start getting rid of all the kids that were hanging around", irrespective of whether they were violating the law. For his opposition to such illegal orders, Serna was transferred to an entry-level graveyard patrol in one of the City's most dangerous districts.
Serna sued the City and a jury awarded him $475,000 in the federal district court for the violation of his First Amendment rights and whistleblower protections. The City appealed to the 5th Circuit Court of Appeals, which then threw out the decision and, simultaneously, created a new standard. Due to the circuit court's precedent, officers like Serna must prove that they suffered "an adverse employment action," — a reduction in pay — not that their First Amendments rights were violated. The Supreme Court denied review, so it is now the law in the 5th Circuit. Such a decision can only discourage SAPD officers from resisting illegal orders.
Bush has more vacancies in the 5th Circuit to fill, and it will likely veer further away from the interests of those who need fairness and justice the most.