May 11, 2005
Nan Aron and the Alliance for Justice Tell Us Just What the Republicans Are Up To With Their "Nuclear Option"
A BUZZFLASH INTERVIEW
It's laughable that the Republicans now charge the Democrats with playing politics with judges, given that they opposed Clinton's nominees not because they weren't qualified, but simply because they wanted to hold these seats open. ... But if this President wants to avoid an all-out, divisive and rancorous battle, then he can do exactly what President Clinton did. Sit down with the Democrats or sit down with the party not in power, and come up with a consensus of nominees who could sail through the Senate.
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Senator Bill Frist has lost his mind as he edges closer
and closer to pulling the trigger on the "nuclear option" --
an unpopular power grab to change longstanding rules in the Senate to
remove the ability of Senators to filibuster Bush's right-wing nominees
to the federal bench. BuzzFlash got tired of the Republican talking points
accusing Americans of being "against people of faith" because
we disagree with the right-wing takeover of the federal courts. We thought
it was time to talk to Nan Aron, President of the Alliance for Justice,
a stellar and resourceful public interest organization which monitors
the appointment process for Supreme Court Justices and lower federal court
judges. The Alliance is no doubt the premiere national organization advocating
for a fair and independent judiciary.
Use the Alliance for Justice website www.independentjudiciary.org
if you want the facts on Bush's plan to pack the courts with ultra-conservative
ideologues.
We spoke with Nan Aron about the hypocrisy of conservatives who blocked
President Clinton's nominees to the federal bench, how Republican Senators
and right-wing judges colluded to keep judgeships vacant during the 90's,
and some of the crazies to whom Bush wants to give a lifetime appointment
to the federal bench. For example, did you know that one of Bush's nominees
to the powerful D.C. Court of Appeals also wrote the section on Monica
Lewinsky for the Starr Report?
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BuzzFlash: Why should a typical American
care about the right-wing power grab and takeover of the federal judiciary?
Nan Aron: This Administration is seeking to put individuals
on the federal bench who side with big business at the expense of ordinary
Americans. Bush's judicial nominees want to turn the clock back on all
the progress we Americans have made in cleaning up the water we drink,
the air we breathe, protecting the safety of workers, advancing civil
rights, women's rights, overturning the right to choose. President Bush's
nominees to the federal bench have long records demonstrating hostility
to so many of the rights and protections that we Americans take for granted.
BuzzFlash: Right now, Senator Bill Frist is threatening
to trigger the nuclear option and threatening to change over 200-year-old
rules in the Senate, to essentially remove the Senate's power to filibuster
Bush's extremist nominees to the federal bench. Although Sen. Frist's
power grab is unpopular, he and the White House are continuing their showdown
with Democrats and moderate Republican Senators. Do you think Frist will
fail?
Nan Aron: I think at this point it's too close to call.
However, most Americans understand that the filibuster is part of our
nation's system of checks and balances. Americans understand that the
Senate is the last line of defense to George Bush's court-packing agenda.
Most people don't know that the Senate and the executive branch share
-- have equal say -- in who becomes a federal judge. Most assume that
the President gets whomever he wants. The President only has a right to
nominate or try to put his choices on the bench but there is a co-equal
right given to the Senate to confirm those nominees based on what is best
for the country, not what's best for the President's political agenda.
I think most Americans believe the filibuster should be honored
not only as a tradition, but as a useful check on any President's plan
to pack the courts. This whole national debate that has ensued over the
nuclear option and the filibuster has actually helped to bring home to
Americans just how dangerous this President's agenda is in terms of his
judgeships. These judges are good for his politics but they are bad for
the American people. And I think more and more Americans are gaining an
understanding as to just how threatening these nominees are to those protections.
BuzzFlash: How many of Bush's nominees to the federal
bench have been confirmed by the Senate compared to how many have been
blocked?
Nan Aron: President Bush has successfully appointed 208
out of 218 nominees to the federal judiciary. Only ten have been blocked.
Now let's compare that to President Clinton's nominees, several of whom
were filibustered on the Senate floor, and 60 -- Yes 60 of Clinton's nominees
-- were blocked by the Republicans and some were never even brought up
in committee for a vote.
BuzzFlash: During the Clinton Administration there was
another very peculiar pattern that emerged. Although federal circuits
had vacancies that needed to be filled, and by their own admission drowning
from the immense caseloads, Republican Senators worked in collusion with
conservative judges to prevent those vacancies from being filled. They
were hoping that at some point, a Republican -- now President Bush --
could make those lifetime judicial appointments. How were they able to
pull this off? I know the D.C. Circuit and the Fourth Circuit were two
examples where Senators and judges colluded to essentially stall a vacancy
from being filled.
Nan Aron: During most of the Clinton Administration,
Senators never went so far as to publicly engage in a filibuster. They
simply placed secret holds on nominees and never held hearings on significant
numbers of appointees. The strategy of the Republicans during most of
the Clinton Administration was to keep vacant as many seats on the courts
of appeal around the country as possible. These judges -- and there are
only about 300 of them -- are incredibly influential and powerful. Republicans
seized the opportunity to keep these seats vacant by simply never moving
many of the circuit court nominees.
For example, in the Sixth Circuit Court of Appeals, which covers the states
of Ohio, Michigan, Tennessee and Kentucky, Clinton put up four nominees.
Republicans blocked these candidates from ever getting hearings. And then
the minute Bush came into office, the Republicans demanded that these
seats be immediately filled. Many Democrats at that point argued, appropriately
so, that the Republicans should not be able to benefit by their obstructionism
by holding seats open during the Clinton years, only to fill them quickly
during the Bush years.
One individual in particular, Helen White, waited four years for a hearing.
And this woman was eminently qualified, enjoyed the respect of lawyers
all over the state, and should have easily been confirmed. Republicans
simply blocked her nomination because again, they wanted to hold seats
open.
And in fact, once Bush came into office, Senator Carl Levin (D-MI) said
to Alberto Gonzales, then White House counsel, look, let's sit down because
we need to get those seats filled. Levin said it's in the interest of
the American people to fill those seats. Let's sit down and talk about
filling the seats with some of your nominees as well as some of the nominees
who were blocked during the Clinton years for no other reasons than politics.
And Gonzales said no.
It's laughable that the Republicans now charge the Democrats with playing
politics with judges, given that they opposed Clinton's nominees not because
they weren't qualified, but simply because they wanted to hold these seats
open. On the other hand, every single one of the nominees now being filibustered,
has an appalling record on civil rights, women's rights, the environment,
and workplace protections. If Americans knew who these individuals are
and the views they represent, people would unanimously oppose these candidates.
Now in the Fourth Circuit -- that covers the Carolinas, Maryland, Virginia
and West Virginia -- there was an equally insidious situation. After being
elected, President Clinton wanted to integrate the Fourth Circuit, which
never had an African American as a court of appeals judge. This was true
even though the numbers of African Americans living in the Fourth Circuit
states was huge. Clinton sent a few names over to the Senate of well-qualified
African American judges -- some were state court judges -- to fill the
Fourth Circuit seats. And Jesse Helms blocked those nominees. And every
time Clinton sent a name over to the Senate, Helms sent the name back.
It wasn't until the end of the Clinton Administration where so many Senators
expressed embarrassment over the all-white Fourth Circuit that President
Clinton finally gave a recess appointment to a lawyer named Roger Gregory,
an African American, to fill a seat on the Fourth Circuit.
Gregory also had a very large number of Republican lawyers writing and
speaking up in favor of his recess appointment. And it's so hypocritical,
of course, for Republican Senators to now claim that Bush's recess appointments
of extreme ideologues were completely in keeping with President Clinton's
recess appointment of Roger Gregory.
But the two situations couldn't be farther apart. Gregory became a recess
appointment to integrate the Fourth Circuit. Bush's two recess appointments
have been people with views that are very hostile to civil rights. Clinton's
nominee Roger Gregory was a centrist and had bipartisan support -- Bush's
two nominees had been filibustered.
Of course, President Bush nominated Roger Gregory early in 2000 to give
him a permanent judgeship, which is very laudable, but nothing out of
the ordinary, because Roger Gregory already was on the Fourth Circuit
Court of Appeals.
BuzzFlash: The most appalling examples of the Republicans'
hypocrisy are two aides to Senators Jesse Helms and Strom Thurmond --
two Senators who worked to keep those judicial vacancies open in the 4th
Circuit. Dennis Shed, a former aide to Senator Thurmond is now a federal
judge on the 4th Circuit -- he was appointed by Bush and confirmed in
the fall of 2002. And Terrence Boyle, a former aide to Senator Jesse Helms,
has been nominated by Bush to the 4th Circuit Court of Appeals but is
being blocked due to his extremist views.
Nan Aron: It's appalling and worth noting that Judge
Boyle has been reversed over 150 times by the Fourth Circuit -- twice
the rate of the average judge. And Judge Boyle twice decided that a North
Carolina Congressional district drawn to have a population that was about
50% African-American violated the Constitution. The Supreme Court reversed
both decisions. In the first reversal, Justice Thomas, writing for a unanimous
court, found that Judge Boyle had prematurely decided in favor of the
white plaintiffs before trial, despite the continued existence of factual
disputes.
BuzzFlash: The right-wing has resorted to the lowest
form of politics over the confirmation fight of these ultra-conservative
nominees and used wedge issues of race, gender and faith to polarize America.
The Republicans said that the Democrats were being anti-Hispanic when
they blocked Miguel Estrada from being confirmed to the D.C. Court of
Appeals in the last of Congress. Sometimes the right-wing has cherry-picked
on gender and said we need more women on the federal bench, but only to
the extent that they want to confirm extreme conservative judges like
Janice Rogers Brown or Priscilla Owen. And just recently, the right-wing
resorted to accusing Democrats and moderate Republicans as being against
people of faith because of their opposition to ten judicial nominees.
How do you think this plays itself out with the American people?
Nan Aron: I think these strategies reveal just how desperate
the Republicans are. After all, the Congressional Hispanic Caucus weighed
in against Miguel Estrada. As far as women are concerned, Democrats have
confirmed dozens and dozens of women for federal appointees. These women
in question, Janice Rogers Brown and Priscilla Owen, have records that
put them way out of the Constitutional mainstream. I think these attacks
and innuendos are really the last gasp of frustrated Republicans who will
now do anything and everything, including lying, to get their nominees
confirmed. It won't work. The American people see through this strategy.
BuzzFlash: The Republicans are trying to make it appear
that the Democrats have randomly chosen ten of Bush's nominees. Whereas,
as you have indicated, there are very good reasons why these ten nominees
are being filibustered. It's not as if the Democrats chose ten names out
of a hat to filibuster. And there are truly some characters on this list.
I wonder if you'd just go over some of them very briefly. For example,
after doing some research on your website www.independentjudiciary.org,
Priscilla Owen -- who's been nominated to the U.S. Court of Appeals
on the Fifth Circuit -- hired Karl Rove as her paid campaign consultant
when she ran for the Texas State Supreme Court.
Nan Aron: First, I would suggest that people who want
information about these nominees look at our website to get a sense of
these individuals' records.
Alberto Gonzales, the current U.S. Attorney General, at the time that
he was a colleague of Priscilla Owen's on the Texas State Supreme Court,
called one dissent of hers under a parental notification statute, "an
unconscionable act of judicial activism." Now that's saying something.
Let's take William Pryor, who's been nominated to the 11th Circuit Court
of Appeals. As Alabama's Attorney General he tried for years to undo a
host of federal laws, including the Family Medical and Leave Act, the
Americans with Disabilities Act, the Age Discrimination in Employment
Act, the Clean Water Act, and the Violence Against Women Act. I would
say that William Pryor never met a federal law he liked. And he tried
to undo dozens and dozens of these laws. He testified at his hearing before
the Senate Judiciary Committee that abortion was the worst abomination
in Constitutional history, and admitted to Senator Schumer (D-NY) that
he would overturn Roe if given the opportunity.
The quote that haunts me the most about Pryor is when he was so hostile
in a remedial case regarding Alabama's non-compliance with the settlement
involving its foster care system. And Pryor said, "My job is to make
sure the State of Alabama isn't run by a federal court. My job isn't to
pester you and help children." That's about as insensitive and harsh
a quote as one could imagine.
Obviously, I don't think most Americans have any idea that Brett Kavanaugh
worked with Ken Starr's investigation and his claim to fame was writing
the section of the impeachment report dealing with Monica Lewinsky. An
author of that report should not be rewarded with a lifetime position
in the most influential court of appeals in the country, the D.C. Court
of Appeals, which is also a potential stepping ground to the Supreme Court.
BuzzFlash: Since the Senate has confirmed over 200 of
President Bush's nominees to the federal bench, is there an emergency
or crisis in the federal judiciary anymore?
Nan Aron: All the talk about a crisis is a hoax. There
are in fact very few vacancies. And even if there is a vacancy crisis,
it's because George Bush hasn't reached across the aisle and named competent
individuals who can fill the existing seats.
BuzzFlash: If this fight over circuit and appellate nominees
in the federal judiciary is any sign, there is no doubt going to be an
all-out political war over the next Supreme Court nominee, especially
if Chief Justice Rehnquist resigns. Do you think that what we're seeing
now is in fact that first battle leading up to the Supreme Court fight
and that what we're seeing now can't be taken out of a larger context
and a larger agenda?
Nan Aron: The national debate going on over the nuclear
option right now should send a very clear signal to this Administration.
And that is, if they want to bring on a war over the judiciary, then this
President will continue to send us the kinds of nominees to the Supreme
Court that he has sent to the lower courts. But if this President wants
to avoid an all-out, divisive and rancorous battle, then he can do exactly
what President Clinton did. Sit down with the Democrats or sit down with
the party not in power, and come up with a consensus of nominees who could
sail through the Senate. One hope is that this President,
who came in as a "uniter and not a divider," would tack toward
the center, and put up an acceptable Supreme Court nominee. But if he
doesn't, then it is our patriotic duty and right to do whatever we can
to raise objections, lobby senators to vote no, and fight for an independent
judiciary.
BuzzFlash: Nan Aron, thank you for speaking with us again.
Nan Aron: Thank you.
A BUZZFLASH INTERVIEW
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Resources
See the Alliance for Justice website, Independent Judiciary.org
http://www.independentjudiciary.org/nominees/
BuzzFlash Interview with Nan Aron, President of Alliance for Justice,
on Bush's Judicial Nominees - November 24, 2003
http://www.buzzflash.com/interviews/03/11/int03322.html