Nomination Watch

The Fourth Circuit: A Chance for Change?

All eyes will be on President Bush’s judicial nominations in the new year. The Fourth Circuit, long considered a conservative stronghold, now has several open seats. That court has consistently sided with the Bush administration in legal challenges to its national security policies, and more than one of its judges was believed to be on the President’s short list for the Supreme Court. However, as the Washington Post highlighted this week, the departure of a number of prominent conservatives to private sector jobs and retirement will leave the court split with six Republican and five Democratic appointees in July, with four spots to be filled. Thus, the court’s reliability as an unfailing conservative ally of the administration is now uncertain.

Even under the Republican controlled Senate, some of the President’s nominees to the Fourth Circuit were too controversial to win approval, including U.S. District Judge Terrence W. Boyle, Jr. whose nomination the Center opposed due to his record of ignoring established legal precedents regarding important anti-discrimination protections. Now that the balance of power in the Senate has shifted, nominees will face greater scrutiny by the Judiciary Committee. Whether this will lead the President to nominate candidates who are not conservative ideologues, and who respect constitutional rights and civil liberties, remains to be seen. We will be watching  – and ready to respond!

Fourth Circuit judicial nominations

Nominations speak louder than rhetoric . . .

As has been widely reported, the President has chosen to follow up his pledge to work for bipartisanship and cooperation with the renomination of four controversial candidates for the federal bench. By renominating individuals whose collective records reflect disdain for civil rights and individual liberties, contempt for environmental protection, questionable ethics and dubious qualifications, President Bush places partisan pandering over the national interest in a fair and competent judiciary. The Senate has had occasion - in some cases multiple occasions - to consider nominees Terrence Boyle, Michael Wallace, William G. Myers and William J. Haynes, and has not seen fit to bring their nominations to a floor vote. The President’s refusal to respect either the Senate’s concerns or the national sentiment shunning divisiveness suggests that the judicial nominations battle may be far from over.

judicial nominations civil rights

. . . and a reminder about why what we are hearing is a problem

A recent decision by the Sixth Circuit demonstrates the importance of the role played by Court of Appeals judges. With very few cases reviewed by the Supreme Court, the Courts of Appeals frequently provide the final authority on cases that raise critical issues surrounding women’s health and welfare. For example, in a recent case, Cincinnati Women’s Services v. Taft, the Sixth Circuit reviewed two provisions of an Ohio statute that could be dangerous to women. While the Court did strike down one provision, it upheld the second - using an analysis that spells trouble for women’s reproductive rights.

Under the Supreme Court’s “undue burden” test, states may impose restrictions on a woman’s access to abortion only if they do not create an undue burden, or substantial obstacle, in her path. Instead of focusing on the severity of the burden imposed on an individual woman’s exercise of her right to choose, as courts have traditionally done, the Sixth Circuit required that a restriction, even if extremely burdensome to some women, could be upheld as long as, in its view, not enough women would be harmed.

Using this dangerous rationale which explicitly sanctions government restrictions that clearly harm some women, the court upheld a requirement that women must have an in-person meeting with a physician at least 24 hours before the procedure despite the fact that it was harmful and even life-threatening for some abused women. Those women for whom this law forecloses the option of abortion do not suffer any less because others may still be able to obtain abortions. This case starkly portrays why judges matter, and how those who are hostile to women’s rights can cause great harm to women across the country.

abortion court of appeals reproductive rights