November 24, 2003
Aron, President of Alliance for Justice, on Bush's Judicial
As if he hasn’t done enough damage to our country already, President Bush seeks to leave a legacy that will far outlive his horrific policies by hijacking the federal judiciary. Since first stealing office, Bush continues to appoint ultra-conservative judges to implement the right-wing agenda, and those judges will continue to do so long after Bush’s reign. To date, Senate Democrats have filibustered or blocked only six of Bush’s nominees to the federal bench, while 168 nominees have been confirmed. Bottom line, something is terribly misguided in the Bush administration when it feels that an author of the Starr Report, Brett Kavanaugh, is qualified for a lifetime appointment to the D.C. Court of Appeals, the second most powerful court in the United States.
We spoke with the president of Alliance for Justice, Nan Aron, who is leading the fight to keep some of Bush’s ideologues off the federal Appeals Courts and to advocate for a fair and independent judiciary.
Nan Aron founded the Alliance for Justice in 1979 to bring the resources and talents of the public interest community to address critical issues affecting the advocacy community. In 1985, she founded its Judicial Selection Project, which monitors the appointment process for Supreme Court Justices and lower federal court judges. The Alliance is the premiere national organization advocating for a fair and independent judiciary.
Ms. Aron is a nationally recognized expert on public interest law, the federal judiciary, and citizen participation in policy formulation. Her book, Liberty and Justice for All: Public Interest Law in the 1980s and Beyond, has been distributed throughout the United States, used as a law textbook, and translated into Spanish. Ms. Aron has taught at Georgetown University and George Washington University law schools, and serves on the Dean’s Advisory Council at American University’s Washington College of Law.
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BuzzFlash: Your group, the Alliance for Justice, was instrumental in defeating the nomination of Miguel Estrada to the D.C. Court of Appeals and essentially pressuring Senate Democrats to maintain their filibuster.
Nan Aron: It’s not about pressure; it’s about education. The backbone of our work is our research on the records of judicial nominees. We use that research to educate the public, the press, and the Senate. We believe that we put together a very persuasive case that senators had to use every tool at their disposal to prevent Mr. Estrada from getting a lifetime appointment on the second most powerful court in the country.
BuzzFlash: Essentially, the White House has not learned their lesson. The Bush administration has come back with more extremist nominees who were also recently blocked by the Senate Democrats last week when the Republicans held a continuous 40-hour debate that ended Nov. 14 with the defeat of Carolyn Kuhl, Janice Rogers Brown, and Priscilla Owen. I want to focus on the D.C. Court of Appeals nominees. Can you tell our readers why the Alliance for Justice is opposing Bush’s nominees -- Janice Rogers Brown and Brett Kavanaugh - to the D.C. Court of Appeals?
Nan Aron: Janice Rogers Brown is among the most extremist of the Bush nominees. She’s an example of how this administration puts ideology above all other factors in picking judicial nominees - ideology trumps the most basic factor, legal competence. Justice Brown was found unqualified on two occasions by her state judicial evaluation nomination committee. The rating reflected concerns about both her lack of judicial experience, but also, even more troubling, her willingness to distort precedent to justify a particular outcome. Justice Brown has been criticized repeatedly by her colleagues on the court, most appointed by Republican governors, for misrepresenting the law.
Her opinions and speeches demonstrate a real hostility toward such critical government functions as protection against discrimination and preservation of the environment. In both, she uses provocative and callous language. In one of her more infamous speeches, she said that seniors who benefit from government programs such as Medicare and Social Security “blithely cannibalize their grandchildren.” I should note that the D.C. Circuit, the court to which she has been nominated, has exclusive or concurrent jurisdiction over cases involving government regulation in a number of critical areas - labor, the environment, consumer protections. It is astonishing that someone with her demonstrated predisposition against these government protections is being considered for this court.
Brett Kavanaugh, also nominated to the D.C. Circuit, was up until very recently, in charge of picking judicial nominees for this administration. He is as responsible as almost anyone in the administration for its unilateral, divisive judicial selection process and for the extremist nominees that have come out of this process. But he is perhaps best known for having authored the Starr Report. The fact that Kavanaugh is being considered for a seat on the D.C. Circuit, the crown jewel of this country’s appellate court system and the principal “feeder” of judges to the U.S. Supreme Court, is a travesty.
BuzzFlash: The Republicans understand two very important things: 1) the long-term impact of a federal judge, especially on the D.C. Circuit; 2) that the fight over federal judicial nominees goes largely unnoticed by the vast majority of Americans. What’s your response?
Nan Aron: Yes, the Republicans have long recognized the critical importance of selecting extremist judges at the federal appellate court level. The appellate courts, made up of fewer than 200 hundred judges, issue tens of thousands of decisions every year. In contrast, the Supreme Court hands down only about 80 opinions a year. That means that the federal appellate courts are the courts of last resort for more than 99 percent of the cases coming before them. For the last 20-some years, Republicans have recognized - until very recently, far more than Democrats - the enormous influence that federal appellate judges have in defining the law in this country and the importance of the judicial appointment power to a presidential legacy. Having said that, I do believe, because of the work being done by hundreds of organizations -- both here in Washington, D.C. and around the country -- more and more Americans are focusing on this issue and becoming involved.
BuzzFlash: How do you respond to the disparity in the rhetoric and deceptions from the Republican Party versus the facts? The Senate Democrats have approved 168 Bush nominees to the federal judiciary. Only six have been opposed. It’s not as if the Republicans and the right wing aren’t getting the lion’s share of their right-wing judges. There’s only a select few that are high profile that have been blocked by the Senate democrats, and for very valid reasons. In contrast, more than 60 of the Clinton administration judicial candidates were blocked by Orrin Hatch and the Republicans. How do you explain that disparity between fact and rhetoric that you’re hearing from people like Senator Orrin Hatch and others?
Nan Aron: Well as of last Friday, there are five nominees being filibustered, with one - Miguel Estrada - having withdrawn his nomination.
When you hear Senator Hatch or George Bush or John Ashcroft talk about judges, they are sending signals to the right wing of their party that they care about them and are seeking to implement their agenda. Republicans have always used this issue to energize their base and make sure that they go to the polls on election day. They do not feel constrained by facts or precedent - just like far too many of this administration’s nominees - and happily resort to lies and distortions in order to pump up or appease the right wing of the Republican Party.
Senate Republicans seem determined to focus on the small handful of nominees who are being filibustered. It’s all about message to them, and politics. And all designed to appease their right-wing base.
BuzzFlash: The Bush Administration views the confirmation process of their nominations to the federal bench as essentially a formality - a rubber stamp. It seems previous presidents saw the confirmation process as exactly that - a process by which they would work with the Judiciary Committee and the leadership in the Senate to find good candidates. The Bush administration appears to believe it’s their divine right to put anyone they deem worthy to a lifetime appointment to a federal judgeship.
Nan Aron: This administration has certainly run roughshod over the other party right from the beginning. And rather than do what Clinton did, which was to make sure that his potential nominees met with the approval of the Republican leadership in the Senate, this administration has simply sent up names to the Senate, in defiance of senators’ requests for consultation, and in defiance of their legitimate concerns over the types of nominees who were being submitted. While they complain vociferously about the filibuster, they could end the practice today if they chose, by sitting down with the Democrats and figuring out a slate of consensus candidates to promote. But they refuse to do that. And they refuse to do it because they believe that nominees who favor Big Business over workers and consumers or who vehemently oppose a woman’s right to choose motivate their political base. Just as they believe that signing legislation banning so-called partial birth abortions will enhance Bush’s chances of reelection. We think the American people will see through this. But unfortunately in the meantime, our courts and our country suffer.
BuzzFlash: The Bush administration has sought out minorities and women who share their extremist right-wing ideology and then use any opposition to those nominees against Senate Democrats and flare racial and gender divides. For example, the Republicans claimed that the opposition to Miguel Estrada’s nomination to the D.C. Court of Appeals was steeped in racism because Estrada is Hispanic -- even though several Hispanic organizations and advocacy groups also opposed Estrada’s nomination. Even female senators who opposed right-wing ideologues such as Janice Rogers Brown, Carolyn Kuhl, and Priscilla Owen were called sexist. Will that strategy work in the long term to get these right-wing ideologues on the federal bench?
Nan Aron: No, I think the strategy has already backfired. The ads put out by the Committee for Justice run by Bush 41’s former White House Counsel, C. Borden Gray, tried to portray the opposition to William Pryor as anti-Catholic. It turns out that senators on the Judiciary Committee didn’t even know Bill Pryor was Catholic until Chairman Orrin Hatch attempted to set up the issue by asking him his religion - a totally irrelevant and inappropriate question.
Senate Republicans and other supporters of the President’s judicial nominees are employing a cynical strategy to change the subject. Rather than respond to legitimate questions raised by Bill Pryor’s description of Roe v. Wade as an abomination, they attack his critics as anti-Catholic.
During the committee vote on the Pryor nomination, Senator Durbin had a great line, in which he thanked his colleagues on the other side of the aisle - none of whom are Catholic - for explaining Catholicism to him since Durbin (D-IL) is one of four Catholic Democrats on the Judiciary Committee. Senate Republicans have attempted similar tactics with other nominees. They claim that those who oppose Janice Rogers Brown are anti-black, and anti-Latino because they oppose Estrada. They really stretched to put Pickering into a category, claiming his opponents were anti-Southerner. To the Republicans, this is a game - it’s a ploy to pump up the base. It is a shameful strategy to pursue when we all know how important federal judges are to giving ordinary Americans the ability to solve important problems and hear important cases.
BuzzFlash: It seems to me that the answer is that we don’t need liberal judges per se, it’s just that future federal judges need to be able to decide a case based on the merits and based on the rule of law - not based on ideology or returning political favors. Secondly, if a nominee for the federal bench has an ideology or a strong point of view, then the nominee should explain and defend their opinion, and not engage in deceptive tactics and politics about it.
When I interviewed Martin Garbus, a noted author and First Amendment lawyer, he stated that federal judges are people whose job it is to have opinions and to articulate them. If you’re a judicial nominee and you have a legal opinion, explain why and give reasons why you think precedent and the rule of law supports it, and let it stand for what it is. But Bush’s extremist nominees are trying to deceive the public and Senate about their ultra conservative views rather than justifying them.
Nan Aron: Well, exactly. And yet the Republicans seem to be placing the blame on the Democrats for being ideological. They’ve got it completely backwards. Ideology in this Administration trumps every other qualification. It is the sine qua non of the selection process. And the reason the Republicans try to change the subject, attacking the Democrats for being anti-Southern, for example, and claiming they are being obstructionists, is that even they are embarrassed to defend these nominees on their records. It’s a tacit acknowledgment that for many decisions issued or positions taken by these nominees, there simply is no defense.
BuzzFlash: How do you think the rejection of Robert Bork, who was Reagan’s nomination to the Supreme Court in 1987, and the Clarence Thomas confirmation hearings, still cast a shadow over the nomination process? Granted, both of those cases were high-profile because they were nominated to the Supreme Court. Bork was rejected, and, sadly, Thomas was eventually approved.
Nan Aron: I think that with both nominations, Republicans have been seeking to engage in revenge politics for the campaigns in opposition to those nominees. You know, it’s interesting. Presidents tend to overreact to previous incidents or campaigns. And playing to his base’s anger over the treatment of Bork and Thomas - and over Justice Souter for different reasons - Bush campaigned on the pledge to appoint judges like Scalia and Thomas. He wanted, at the very outset, to send a very clear message that; 1) there would be no more David Souters or moderates; 2) he would give the right wing exactly what they wanted - extremist judges; and 3) Bush would go to bat for his judicial nominees.
Clearly this process has always been designed to be a political one. Even George Washington’s first nominee to the Supreme Court didn’t make it because of his vote on the Jay Treaty. We have to remember that the President nominates, but the Senate has an equal role to play in reviewing and confirming nominees. So the Constitution envisions that there would be a very tumultuous process. You know, Bork was not the first nominee to be defeated. In fact, one of five nominees to the Supreme Court since the late 1700s has not made it. But yet certain Republicans want to reap vengeance, even today, on senators who voted against him.
BuzzFlash: One of the powers of a federal judge, especially a Supreme Court Justice, is that they receive a lifetime appointment. Appointing an ideological federal judge allows that person to implement the right-wing agenda such as restricting women’s choice, curtailing civil rights legislation, and siding with corporate polluters. Those are, however, unpopular positions. Representatives and Senators ideally are held accountable to their constituents. But a right-wing federal judge can implement the agenda and still maintain job security. What can people who are concerned that the right-wing is taking over the federal judiciary do?
Nan Aron: First, they can look at our websites, Alliance for Justice (http://www.afj.org) and Independent Judiciary (http://www.independentjudiciary.com) and get informed. We urge people to both call and write their senators and tell them to put a halt to the Bush court-packing plan. People also need to call the Democratic presidential contenders and tell them they want them to talk about this issue, and to debate this issue of putting qualified judges on the federal bench.
BuzzFlash: Thank you for speaking with us.
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Martin Garbus </interviews/2002/10/10_Garbus.html>, author of "Courting Disaster: The Supreme Court and the Unmaking of American Law" - October 10, 2002 [LINK]
Martin Garbus, Author of "Courting Disaster," on the Miguel Estrada Nomination, March 15, 2003 [LINK]
A full report on Janice Rogers Brown, nominated to the D.C. Court of Appeals [LINK]
AFJ Press Release on Assistant White House Counsel Brett Kavanaugh, nominated to the D.C. Court of Appeals [LINK]
otherwise noted, all original