• Action Alert: Urge the Senate to Stop Discriminatory Judicial Appointments!
  
  
• An Editorial from the desk of John A. Lancaster, NCIL Executive Director
  
  

Action Alert: Urge the Senate to Stop Discriminatory Judicial Appointments!
Janary 22, 2008

Contact: Senate Judiciary Committee Members

Message: "Oppose Judge Gene Pratter to the Third Circuit Court of Appeals” and "Don't Consider Controversial Judicial Nominees During Presidential Election Year."

Rationale: NCIL is strongly opposed to the confirmation of extremist judicial nominees, which has led to the further weakening of the Americans with Disabilities Act (ADA) and other civil rights protections. We believe that none of the pending controversial judicial nominations, including Judge Gene Pratter to the Third Circuit Court of Appeals, should be acted upon.

The Senate should follow its longstanding policy that judicial nominations are not processed in a presidential election year unless they are uncontroversial.  Federal courts have inappropriately rolled back many important rights of people with disabilities, and the nomination of controversial nominees who are hostile to civil rights must come to an end.  Accordingly, the nominations of Judge Pratter and all other controversial nominees should not be acted upon.

Contact Information: Please voice your concerns to Senate Committee on the Judiciary Chairman Senator Patrick Leahy, Ranking Member Senator Arlen Specter, and all committee members.

An Editorial from the desk of John A. Lancaster, NCIL Executive Director

Daniel, Oh Daniel (Davis) Where Art Thou?

When I took my position of Executive Director at NCIL in January of 2005, I inherited some great employees.  Among them at the time was Daniel Davis, NCIL’s Policy Analyst.  Daniel, a brilliant and inexhaustible young man, had in his all too full portfolio of NCIL issues the civil rights of people with disabilities and the Americans with Disabilities Act.  Thus, one of the areas he pursued with dogged intensity, thorough research, and passionate concentration was judicial nominations.

He would get so into the research and advocacy around nominees that it would seem to consume every fiber of his being.  He would write long well researched Action Alerts calling on our members to write their Senators in vigorous opposition to certain nominees to the Federal District, Circuit and Supreme Courts.  Countless hours he logged on the phone and blazing out emails with colleagues as they would build the case against undesirable nominees.  I would often become concerned and feel that I would have to remind Daniel that we had other issues too; personal attendant services, housing, transportation, employment, etc.  He would glower back and remind me of the Sutton v. United Airlines, Murphy v. United Parcel Service, Albertson's, Inc. v. Kirkingburg trilogy of Supreme Court decisions and the growing number of adverse lower court decisions based on the trilogy.

Now more than ever, I miss Daniel’s full-bore passionate approach to opposing federal court nominees that have no understanding of our issues or of the Constitutionally and Congressionally conferred rights recognized by the ADA.  We would not be in this dangerous and difficult strategy battle for the ADA Restoration Act if appointees to the federal bench during the reigns of Bush I and II had been empathetic to our issues and rights… and of the law.

Daniel has gone on to greener pastures as a staffer on Congressman Waxman’s Governmental Reform Committee.  Fortunately for NCIL he keeps in touch and brings his understanding of our issues to a very important Committee in the House.  Equally fortunate, NCIL has been awarded a small grant from the Open Society Institute through the Bazelon Center, enabling us to focus more resources on the increasingly important concern of radical judicial nominations.

Why should NCIL stay vigilant on judicial nominations?

One can start by looking at Bush II’s legacy.  Besides the complete bankrupting and devolvement of our Federal Government, the legacy will tout a dramatic draconian shift on the federal bench.  Bush has secured Senate confirmation of nearly 300 judges to the federal courts, including 57 circuit court judges and two Supreme Court Justices.  Many of these nominees were vigorously opposed by civil rights groups but, with few exceptions, opposition in the Senate was not successful during the first six years of the Bush Presidency.  

Additionally, the Senate has been under new leadership for an entire year.  Yet not one judicial nominee has been defeated or filibustered.  Instead, the new Senate has confirmed 40 nominees, which, as the Los Angeles Times recently noted, is “more than in the previous three years when Republicans held the majority.”  Six of the 40 were circuit court nominees, including Leslie Southwick, who had joined a ruling which equated using the “N-word” in the workplace to calling someone “teacher’s pet.”  Southwick was nevertheless confirmed to the circuit court representing the highest percentage of minorities.     

Fourteen appellate vacancies now exist in the last year of the Bush presidency.  These affect seven circuit courts around the country (First, Third, Fourth, Fifth, Sixth, Ninth and D.C.).  Eleven nominations have been submitted to the Senate to fill these seats.  What are their perspectives of the rights of people with disabilities?  On the ADA?  How many disability rights cases might they hear during their careers on the bench? 

Thirty district court vacancies now exist.  Sixteen nominations have been submitted to the Senate to fill these seats.   The new Senate should refuse to process all controversial nominations at this late stage of the Bush Presidency.  Write the members of the Senate Judiciary Committee and your Senator and tell them so!

In this last year, President Bush has nominated several persons who are extremely controversial when it comes to civil and consumer rights.  For the Fourth Circuit—already the most conservative court in the country—Bush has nominated Robert Conrad, who has never ruled for a plaintiff in an employment discrimination case, and Steve Matthews, who selected judges for the Reagan Administration, served on the board of an organization that nominated Rush Limbaugh for the 2007 Nobel Peace Prize, and received a partial “Not Qualified” rating from the American Bar Association on his nomination.  

In other instances, the Bush Administration has refused to work with home-state Senators to nominate moderates who meet their approval.  For example, President Bush appointed Virginia lawyer Duncan Getchell to the Fourth Circuit, even though Republican Senator John Warner and Democratic Senator James Webb both objected to the appointment.

If the Bush Administration really wanted to fill these vacancies, it would have appointed moderates who would be confirmed by the Senate this year.  Alternatively, the Administration would rescind the controversial nominations and nominate moderates to ensure confirmation.  Instead, the Administration appears to relish the idea of a “fight” over judges in an election year for its conservative base.  The Senate should recognize that these controversial nominees are merely part of a political strategy and, accordingly, refuse to confirm anyone who is not a moderate.      

The Senate Judiciary Committee has long practiced the Thurmond Rule, whereby nominations are not processed in a presidential election year unless they are uncontroversial or otherwise have bipartisan support.  There is no reason for this Judiciary Committee not to follow that practice in this election year, particularly when the primaries have begun at an unprecedented early date. In the last year of the Clinton Administration, the Republican-led Judiciary Committee refused to process 17 circuit court nominations.  Most of these nominations were not controversial or had bipartisan support. 

If the Senate allows more appellate vacancies to be filled with controversial nominees by this President, the circuit courts will become even more ideologically out of balance.  As a result of the nearly 60 Bush circuit nominations, 11 of 13 appellate courts now have a Republican-appointed majority.  These circuits are already intensely hostile to civil and consumer rights.  Victims of discrimination, workers and personal injury victims can not afford a more unfavorable forum.  

At the same time, the opportunity to fill the vacancies under a more progressive President in 2009 will be lost.  These circuit court seats become available only rarely.  Some states have only one vacancy every decade.  Rather than risk filling the vacancy with the lifetime appointment of a nominee hostile to civil rights, the vacancy should be held open to help ensure a moderating influence on the courts.

One controversial nomination currently being considered by the Judiciary Committee is that of Judge Pratter to the Third Circuit Court of Appeals.  She has made several bad decisions on ADA cases and is being actively opposed by NCIL member CILs in Pennsylvania, lead by Liberty Resources in Philadelphia.  I urge everyone in our great IL Movement to rise up to oppose controversial judicial nominations in these last 11 months of the Bush Administration as if your rights depended upon it… because they do! 

Thanks to our friends at the Bazelon Center and LCCR for necessary background and writing in preparing this editorial.

Sincerely,
John Lancaster