Nomination Watch

What the courts are up to: not always a pretty sight

Practically every day, little-noticed rulings are handed down by federal courts across the country that affect the vitality and strength of rights and principles women rely on.  To illustrate why the courts – and battles over nominations – matter so much to women, we are preparing periodic reports on noteworthy decisions addressing women’s legal rights.   

To read about four interesting – and for the most part, troubling - decisions issued last month, click here. Very briefly, here’s what they involved:

• Fourth Circuit throws out college athlete’s claim challenging coach’s sexual harassment.  Melissa Jennings alleged that she and her teammates were subjected to ongoing sexual harassment by their soccer coach for over two years.  He regularly made crude sexual comments to his players, and the school took no action when Jennings complained.  We agree with the dissenting judge, who concluded that Jennings should have been given a chance to convince a jury that the coach took advantage of his position of power and created a sexually hostile environment.   
  Jennings v. University of North Carolina
• Ninth Circuit rejects challenge to employer’s makeup mandate.  In this case, the court rejected the claim of a casino worker in Reno who was fired, after 20 years in the job, when she refused to comply with the company’s policy requiring her to wear a full complement of makeup on the job. A dissenting judge pointed out that “a rule that all judges wear face powder, blush, mascara, and lipstick while on the bench” would be considered burdensome and demeaning.  Like the dissenters in this 7-4 decision, we do not think it was right to throw out this case.  Jespersen v. Harrah’s Operating Co. 
• Eighth Circuit says no hostile environment when supervisor spies on women’s restroom.  In this case, the court dismissed a case brought by two female bookkeepers whose boss had surreptitiously installed a two-way mirror and peephole into the women’s restroom and then regularly spied on them for four years when they went to the bathroom.   Although the man ultimately pleaded guilty to a felony charge for invasion of privacy, the court concluded that the women’s claims of a hostile environment in the workplace could not even get to a jury.  It shouldn’t surprise you to learn that the only woman on the panel dissented – or that we agree with her.  Cottrill v. MFA, Inc.
• District court upholds the right to medical privacy, but case now on appeal. A federal court in Kansas blocked enforcement of a legal opinion by the Kansas Attorney General requiring health care professionals, social workers, and school counselors to report to authorities any indication that a teen younger than 16 is sexually active.  Medical experts feared the policy would discourage teenagers from seeking health care and counseling, including for sexually-transmitted diseases or birth control, and thereby jeopardize their health.  A District Court struck down the Attorney General’s position as contrary to the plain language of the state law and an infringement of the Constitutional right to privacy concerning sexual or health-related information.  While this decision is a victory for adolescent health and medical privacy, it is now on appeal to the Tenth Circuit, which already reversed a court order temporarily blocking the Attorney General’s position at an earlier stage of this case.  Aid for Women v. Foulston

Stay tuned as we monitor the courts around the country and report on what they’re doing that’s of particular interest to women.

Kavanaugh moves to full Senate and other nominations in trouble

The Senate Judiciary Committee today approved the nomination of Brett Kavanaugh to the D.C. Circuit on a party-line vote.   Serious questions have been raised about Kavanaugh’s fitness to join the second most powerful federal court in the country, but don’t expect that to stop Majority Leader Frist from moving the nomination forward to a full Senate vote very quickly.  The level of opposition in committee suggests there will be strong opposition in the full Senate, but it remains to be seen whether it will rise to the level of a filibuster – which could trigger the “nuclear” response Majority Leader Frist has threatened, breaking the Senate rules to eliminate filibusters of all judicial nominations.

Meanwhile, at least two other nominees for Court of Appeals seats are in serious trouble.  We’ve already noted the controversies surrounding the nomination of Terrence Boyle for the Fourth Circuit, and some have now called on the White House to withdraw that nomination.  On top of that, the ABA has given Michael Wallace, nominated to the Fifth Circuit, a unanimous rating of “Not Qualified,” which certainly suggests the withdrawal of that nomination would be appropriate as well.

Right wing zealots are agitating for fights over judicial nominations to rally their troops in the coming elections.  With nominees like these, they may be sorry if the public starts paying close attention to some of the people being considered for lifetime seats on our federal courts.

lower court nominees 

No vote on Kavanaugh yet

The Judiciary Committee met this morning and postponed a vote on the Kavanaugh nomination to the D.C. Circuit.  Committee Chairman Arlen Specter announced that he would allow another hearing for Kavanaugh, as the committee’s Democrats had requested.  A new hearing is warranted, so that’s a positive development.  This nomination is likely to move quickly after that, however: the hearing will be next Tuesday, May 9, with the committee vote just two days later.

lower court nominees   brett kavanaugh

Troubling Court of Appeals nominees moving to center stage

Here we go again:  with the right wing clamoring for Senate action on more judicial nominees, Senate Majority Leader Frist announced last week that he will push forward some of the most controversial nominees this month.  Two who are high on the list are Brett Kavanaugh, nominated to the D.C. Circuit (generally considered second in importance only to the U.S. Supreme Court), and Terrence Boyle, nominated to the Fourth Circuit. 

Kavanaugh, who currently serves in the White House, has generated opposition because (among other things) he has had little relevant experience (almost no litigation experience, for example) and a number of questions have been raised about his record that have never been explored. His Judiciary Committee hearing was two years ago, and since then his rating by the American Bar Association has been downgraded, but the request of Democrats on the Judiciary Committee for another hearing to look into his current record and his role in controversies that have come to light since his hearing – like the President’s domestic spying program and detainee policies – has not been granted by Committee Chairman Arlen Specter.  The Committee is likely to vote on this nomination this week and Senator Frist said he wants a Senate confirmation vote by Memorial Day.

Judge Boyle, who is currently a district court judge in North Carolina, is at least as controversial if not more so.  A former aide to Senator Jesse Helms, he has a very troubling civil rights record.  He has overlooked established legal standards and issued decisions that fly in the face of anti-discrimination laws, including in cases involving discrimination against women.  On top of that, it was disclosed just this week that he has presided over lawsuits in which he had an interest in one of the parties – and even ruled in favor of those parties – in apparent violation of judicial ethics standards.  Salon.com reports that since he was first nominated to the Fourth Circuit in 2001, he has issued orders in at least nine cases that involved five different corporations in which he reported stock holdings. 

Senator Patrick Leahy, the ranking Democrat on the Judiciary Committee, reiterated the need for another Kavanaugh hearing, expressed amazement at the new Boyle disclosures, and noted that other nominees have been withdrawn in the recent past due to ethical lapses – and that Claude Allen, who was once nominated to the Fourth Circuit, was recently arrested for fraud and might have been on the court had the Senate not slowed action on his nomination a few years ago.  As Senator Leahy said, these events highlight the importance of serious scrutiny by the Committee and the full Senate to assess the fitness of nominees for lifetime appointments to our federal courts.  We’ll soon see whether his colleagues in the Senate have learned the same lesson or prefer the role of rubber stamp.

lower court nominees   brett kavanaugh terrence boyle