Nomination Watch

Controversial nominees to the Courts of Appeals withdrawn

As we reported earlier, four highly controversial nominees to the federal courts were resubmitted by President Bush right after the election. Now, we can happily report that none of those nominees – Michael B. Wallace, Terrence W. Boyle, Jr., William J. Haynes II and William G. Myers III– will be resubmitted to the new Senate. Wallace withdrew in December and the other three withdrew Tuesday. Marcia D. Greenberger, NWLC Co-President, had this to say following Tuesday’s announcement: “These three nominees were controversial for a reason – they were wrong for the job and wrong for the country. As we start a new year and a new Congress, the President should look to consensus nominees for future vacancies.”

These nominees were extremely controversial for varied reasons. NWLC opposed Wallace because his record presented troubling questions about his most basic commitment to equality under the law. Moreover, he was the first federal court of appeals nominee in almost 25 years to receive a unanimous “Not Qualified” rating from the American Bar Association due to concerns about his judicial temperament and bias. Judge Boyle drew criticism from NWLC for his rulings flouting anti-discrimination laws, his apparent violation of judicial ethics standards, and the large number of his decisions that were rejected and criticized by higher courts. Haynes’ central role in the Bush administration’s anti-terrorism detainee and interrogation policies caused many to question his respect for civil liberties. Finally, Myers’ past anti-environmental actions raised concern about whether he would faithfully enforce our environmental laws as a federal judge.

Fortunately, Senator Leahy’s vow to move forward only on consensus nominees as the new Chairman of the Senate Judiciary Committee seems to have convinced these four and President Bush that their records would not survive the scrutiny of the committee. Now, it’s up to the Judiciary Committee, under Chairman Leahy’s leadership, to ensure that future nominees to the judiciary get the scrutiny that the American people deserve to protect our hard won rights.

Court of Appeals nominees Wallace Boyle Haynes Myers Senate Judiciary Committee

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

A Sobering Lesson from Burlington Northern: the Power of the Lower Courts

Although we are pleased with the Supreme Court’s decision in Burlington Northern v. White, the decision is also a harsh reminder of the power of the lower courts, and the irrevocable damage they can cause before the Supreme Court straightens them out on the correct legal standard – when it does.

In Burlington Northern, the Supreme Court held that an employee can win if she shows that in retaliation for her complaint of discrimination, her employer took some action against her that might deter a reasonable employee from complaining of discrimination.  The employer’s action doesn’t have to be as extreme as firing her. For example, the Court said depending on the circumstances, it could be a schedule change that would matter enormously to a young mother with school age children.  But before the Supreme Court ruled, two Courts of Appeals (the Fifth and the Eighth Circuits) applied a more restrictive standard.  They held that an employee could bring a successful retaliation claim only if, after complaining of discrimination, the employee suffered an “ultimate employment action,” such as firing or a change in pay.  In the states where that standard has been applied, countless employees who have suffered retaliation by their employers have been left without a remedy.  In fact, Sheila White’s brief in the Supreme Court has an appendix of about 40 cases in which sexual harassment victims complained and were retaliated against, but received no relief under the “ultimate employment action” standard, and there are undoubtedly many more victims as well.

To give just one example, in a case called Mattern v. Eastman Kodak Company, Jean Mattern, an employee who was enrolled in the company’s mechanic apprenticeship program, complained of sexual harassment, and her employer retaliated.  A supervisor threatened to fire her, she was reprimanded for not being at her assigned work station when she was meeting with the human resources department to discuss her complaint, she missed a pay increase, and she was placed on “final warning.”  The jury awarded Mattern $50,000 in damages.  Nonetheless, the Fifth Circuit held that all of this was not enough for Jean Mattern to win her retaliation case, and it overturned the jury’s award. 

So while Burlington Northern is a huge victory for employees in these circumstances in the future, it will not undo the harm suffered by women like Jean Mattern, who lost their cases in the lower courts for many years before the Supreme Court ruled.

Burlington Northern v. White 

Problematic Court of Appeals nominees: more in store?

Having succeeded in putting Brett Kavanaugh on the D.C. Circuit – he was confirmed on May 26 in a very divided Senate vote, 57-36, and sworn in to his seat on the bench on June 1 – those trying to pack the courts with far-right ideologues do not seem to be taking a breather.  A publication called The Hill reports that the White House and outside conservative groups are planning to work closely with their friends in the Senate to get more Court of Appeals nominees confirmed.  Among those they have in mind are Terrence Boyle for the Fourth Circuit and Michael Wallace for the Fifth Circuit.  We’ve previously noted some of the problems surrounding those two nominations (like Wallace’s unanimous rating of “Not Qualified” by the ABA). 

And there are other divisive nominees waiting in the wings as well.  One awaiting Senate action is William J. Haynes, currently General Counsel in the Defense Department and nominated to the Fourth Circuit.  Haynes has drawn opposition from important Republican Senators like Judiciary Committee member and former military lawyer Lindsay Graham (R-SC) and former military officer John McCain (R-AZ), as well as a number of retired military lawyers, who object to Haynes’ role as the Pentagon’s top lawyer when controversial policies were adopted allowing harsh treatment of detainees captured in Afghanistan, Iraq and elsewhere.  There’s also William G. Myers III, nominated to the Ninth Circuit and strongly opposed by environmental groups who say he favored miners and ranchers at the expense of the environment when he was Solicitor in the Interior Department from 2001-2003.

And if that’s not enough to make your hair stand on end, WH officials Karl Rove and Harriet Miers (remember her?) reportedly have told conservative activists and Senate staff that the administration will soon send the names of more than 20 additional nominees to the Senate for confirmation.  More battles lie ahead if the new nominees are anything like the ones mentioned above.

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

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