Nomination Watch

Supreme Court says racketeering laws don’t apply to clinic violence

In an 8-0 decision written by Justice Breyer, the Supreme Court today held that Congress did not intend federal anti-extortion and racketeering laws to apply to physical violence and other unlawful, disruptive tactics used by opponents of abortion.  (Justice Alito, who was not yet on the Court when it was argued, took no part in the consideration or decision of the case.)  This decision, in Scheidler v. NOW, is the final one in litigation stretching back to 1986, when the National Organization for Women (NOW) sought a nationwide injunction, under federal racketeering laws, to stop abortion opponents from using violent and obstructive tactics around women’s health clinics.  At that time, there was no federal law specifically targeting clinic violence, and the nationwide injunction NOW obtained helped reduce this conduct.  In rejecting NOW’s interpretation of the statute, the Court today noted that, in 1994, Congress enacted a specific statute aimed directly at the type of clinic violence and other conduct at issue in this litigation: the Freedom of Access to Clinic Entrances Act (FACE).  In fact, what the Court did not mention is that since the passage of FACE the violence and blockades at women’s health clinics have largely (though not completely) subsided – demonstrating that statutory protection against this conduct has been critical to ensuring that women can exercise their constitutional right to choose in safety.

Today’s decision was a technical one, focused on construing the anti-extortion law by closely considering the language of the statute and its legislative history.  The Court did not consider the constitutionality of FACE – which has been upheld by all the lower courts to review it in cases challenging it under the First Amendment and Commerce Clause, but which has never been considered by the Supreme Court.  Nor did it address the constitutional right to choose, and today’s decision – in which all members of the Court (except Alito) joined, regardless of their views on Roe v. Wade – can hardly be seen as any kind of forecast of where the Court will be on that issue.  That fundamental issue, however, will be before the Court in its next term.

supreme court

New study finds Bush-appointed trial judges are the most conservative on record

A new study by scholars at the University of Houston has found that the decisions of federal district court judges appointed by President Bush are significantly more conservative than decisions issued by judicial appointees of any other modern American president – especially when it comes to civil rights and civil liberties. 

Political science professor Robert Carp and his team compiled a database of more than 75,000 opinions published by nearly 1,800 federal judges from 1933 to fall 2005, including 795 decisions handed down by judges appointed by President George W. Bush. The study examined cases in several issue areas where a liberal-conservative distinction was readily discernible, including civil rights, civil liberties, labor and economic regulation, criminal justice and the right to privacy.  The researchers found that this Administration’s trial court judges are not only the most conservative of those of the eight most recent presidents (three Democrats and five Republicans) but the most conservative of any president going back to Woodrow Wilson.  On civil rights and civil liberties, President Bush’s district court judges were found to be approximately 20% less likely than those appointed by Ronald Reagan – hardly known for being a liberal President or appointing liberal judges -- to hand down an opinion that could be called liberal.  The Bush judges’ decisions on privacy issues including abortion were also significantly more conservative than those of other judges, although the researchers are careful to note that the sample in this area is not yet big enough to be conclusive.

The study will be published in a forthcoming book called Principles and Practice of American Politics: Classic and Contemporary Readings, 3rd Edition, edited by Samuel Kernell and Steven S. Smith. 

Note that this study does not even take into account Court of Appeals judges – and we know that some of the Bush appointees to those courts have pre-nomination records demonstrating extremely conservative views.   Just wait until judges like Janice Rogers Brown, on the D.C. Circuit, begin to make their presence felt. 

supreme court

Supreme Court agrees to hear abortion case

The Supreme Court today agreed to review the constitutionality of a broad federal abortion ban.   As we have reported,  the Bush Administration asked the Court to grant review of an Eighth Circuit decision striking down this law, the federal Partial-Birth Abortion Ban Act, which was passed by Congress in 2003 without an exception to protect women’s health.  The Court has now decided to hear this case in the next Term, which begins in October of this year.

The decision to take this case for review could be a sign that at least some of the Court, with its new members Chief Justice Roberts and Justice Alito, is ready to revisit its abortion precedents and in particular one of the core principles of Roe v. Wade – that the government may not place a woman’s health at risk when erecting barriers to abortion.  (It takes four votes to decide to hear a case). After all, there is no circuit split on whether this federal ban is valid -- all three federal circuit courts that have considered the ban have ruled it unconstitutional because it lacks a health exception -- and it was only six years ago that the Court decided in Stenberg v. Carhart that a state law similar to the federal law was unconstitutional because it lacked protection for a woman’s health.   But the swing vote in the 5-4 Stenberg decision was Sandra Day O’Connor, who has now been replaced by Justice Alito. 

We will know all too soon whether the new composition of the Court is going to mean significant changes in the area of abortion rights.

supreme court

No news – not necessarily good news

The Supreme Court today did not make a decision about whether to review the constitutionality of a broad abortion ban.  As we mentioned last week, the Bush Administration has asked the Court to review an Eighth Circuit decision striking down the federal Partial-Birth Abortion Ban Act, passed by Congress in 2003 without an exception to protect women’s health.  The petition for review has been before the court for months, with no decision made.  This week, the Administration filed an additional pleading urging the Supreme Court to hear the case and many observers expected a decision today.  The next day the Court may announce an order in this case is February 21.  We’ll be watching and waiting…

abortion ban

Not enough action on judicial nominations?

Yesterday, The Hill, a newspaper that covers Capitol Hill, reported that conservative activists and their allies in the Senate are “growing impatient with the pace of judicial nominations” and are complaining that the nomination process is not moving fast enough. Filling two Supreme Court vacancies in quick succession in just a few months –- one of which was for Chief Justice, no less -- seems like a pretty quick pace to us.  Nonetheless, those determined to pack the courts with right wing ideologues seem to have an insatiable appetite.  Returning their attention to the lower federal courts, they are urging the White House to hurry up with names for vacancies there and pushing for the Judiciary Committee to “pick up the speed” on pending nominations.  Start looking for Committee action on Court of Appeals nominees in the very near future.

lower court nominees

Here we go again – the Pickering seat redux

Last week, President Bush nominated a Mississippi attorney named Michael Wallace for a seat on the Fifth Circuit -- the seat  that became vacant when Charles Pickering retired at the expiration of his recess appointment.  You may recall that Pickering’s nomination for a lifetime seat on the Fifth Circuit was blocked in the Senate due to his extremely problematic record on civil rights issues -- among other things, he had once advised the Mississippi legislature on how to strengthen the state’s ban on interracial marriage, and as a trial judge he routinely dismissed employment discrimination claims and also pressured the Justice Department to drop a charge against a convicted cross-burner in a federal hate crime prosecution to avoid having the defendant serve the mandatory minimum sentence.  In January 2004 President Bush made an end run around the Senate and gave Pickering a recess appointment to the Fifth Circuit.  That action, especially coming on the eve of the Martin Luther King holiday, was widely deplored.

Now, on the heels of honoring Martin Luther King’s widow, Coretta Scott King, President Bush has selected for the Pickering seat another nominee with a problematic civil rights record.  Among other things, it has been reported that as an aide to Senator Trent Lott (then in the House), Wallace urged the Reagan Administration to side with Bob Jones University in defense of the school’s tax-exempt status despite its racially discriminatory policies.  The president of the Mississippi State Conference of the NAACP commented, “Just one day after President Bush pays tribute to Coretta Scott King, he nominates a person with incredible hostility to civil rights for the 5th Circuit, which has the highest number of African-American and Latino residents in the country."  He also criticized President Bush for failing to nominate a black candidate from Mississippi, noting that there is currently only one black federal judge in the entire state.

Sparks are sure to fly over this one.

michael wallace lower court nominees

And it’s not only the Supreme Court

Now that the Senate has completed action on two Supreme Court nominations in quick succession -- like it or not -- we expect the Senate Judiciary Committee to soon turn its attention to addressing nominations to fill vacancies on lower federal courts across the country.  Currently, there are eight nominations for Courts of Appeals pending in the Senate, and additional vacancies on those courts are awaiting nominations.  Several of the pending nominations are highly controversial, including Terrence Boyle and William Haynes for the Fourth Circuit, William Myers for the Ninth Circuit, and Brett Kavanaugh for the D.C. Circuit.  For a sense of why one of these nominations is highly problematic, see our prior post on Judge Boyle.

So far, during the Bush Administration’s first term and the first year of its second term, the Senate has confirmed 227 judges to lifetime seats on federal courts.  These include John Roberts and Samuel Alito for the Supreme Court, as well as 42 judges now on the powerful Courts of Appeals.  Of the 12 Courts of Appeals, all but three are now composed of a majority of judges appointed by Republican presidents, in some cases by very lopsided margins.  And many of those appointed by President Bush are not moderates or even mainstream conservatives, but individuals with records indicating extreme, ideologically-driven views – which is what prompted strong opposition, and sometimes filibusters, in the Senate.   Recall Janice Rogers Brown, William Pryor, and Priscilla Owen, to name just three. 

Get ready for more heated debates as the effort to pack the federal courts rolls on.

terrence boyle lower court nominees

Abortion litigation working its way to the Supreme Court

The constitutionality of a broad abortion ban may be headed for Supreme Court review .  Last July, the Eighth Circuit struck down a federal ban on certain abortions.  The Act was passed by Congress in 2003 and does not include an exception allowing the procedure when it is necessary to protect a woman’s health.  The Bush Administration has asked the Supreme Court to review the Eighth Circuit’s decision.  In January, the Supreme Court postponed a decision whether to hear the case, and the next opportunity for the Court to decide is when it meets on February 17.    

Last week, on the same day, the Courts of Appeals for the Second Circuit and the Ninth Circuit both issued decisions upholding lower court rulings (by district courts in New York and California, respectively) that the same federal abortion ban is unconstitutional. The Ninth Circuit unanimously declared the ban unconstitutional and struck it down in its entirety, for three separate reasons: it lacks a health exception, it is an undue burden on women’s right to  choose because it would effectively ban abortion as early as the 12th week of pregnancy, and it is so vague it deprives doctors of notice of what is prohibited.  The Second Circuit focused only on the lack of an exception, which it held unconstitutional, but it did not strike down the statute in its entirety.  Instead, it relied on the Supreme Court’s recent Ayotte decision, and ordered the parties to file additional briefs on whether there is an appropriate remedy that would bar application of the statute in some circumstances without striking it down completely.  As we reported, the Supreme Court in Ayotte acknowledged that barriers to abortion must protect a woman’s health, but ruled that a law that is unconstitutional in circumstances where a woman's health would be endangered may be struck down only as to those circumstances rather than in its entirety, if that is consistent with the legislature's intent. 

With the Second and Ninth Circuit Court decisions, that means that all three of the three challenges to the federal law have been successful – unless the Supreme Court, with its new members John Roberts and Samuel Alito, grants review of one or more of these cases and decides otherwise.  Stay tuned.

supreme court