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Judging the Judges 

by Dan Noyes and Andy Isaacson


President Bush's right-wing nominees ride again. All were blocked in the Senate their first time around, but now they're getting a second chance at lifetime jobs at federal appeals courts, the second highest position in the judicial branch of government, beneath only the authority of the U.S. Supreme Court.


An assessment of the nominees' records suggests that all consider government regulation a central problem, while they view private enterprise and property a bedrock constitutional right. These nominees are the most visible examples of a judicial nomination trend that the Center for Investigative Reporting discovered in examining all appeals court and court of federal claims nominees during George W. Bush's first term as president.


In the CIR study, 21 of 59 had a history of working as lawyers and lobbyists on behalf of the oil, gas and energy industries. This trend concerns legal scholars, who fear that long-term industry ties may raise questions about the judges' ability to be fair and objective. Rutgers University School of Law professor Jay Feinman told CIR, "Increasingly, you will have federal courts with a pro-industry and anti-government perspective."


At stake is no less than Republican domination of all three branches of government -- not only to recast laws, but to extend their impact long after President Bush has left office, and undo a generation of legal precedents. Here's a look at the credentials they would bring to the bench.





William H. Pryor Jr.


nominated to the 11th Circuit Court of Appeals


During his seven-year tenure as the attorney general of Alabama (1997-2004), Pryor's unabashed conservativism was legendary. His strong public opinions on a litany of contemporary issues suggest where his judicial opinions might be headed if his nomination is confirmed. He once called Roe vs. Wade "the worst abomination of constitutional law in our history"; in 2002 he argued in the Supreme Court, on behalf of Alabama and four other states, for states' execution of mentally retarded inmates; he termed the Voting Rights Act "an affront to federalism and an expensive burden that has far outlived its usefulness"; and he affirmed in 2003 that extending the civil rights of same-sex couples would logically extend to activities like necrophilia and bestiality. It came as no surprise, then, when he rescheduled a family trip to Disney World to avoid arriving during a "Gay Days" event.


He is considered a leading voice in the modern states' rights movement: "With the New Deal, the Great Society, and the growing federal bureaucracy," Pryor testified at a 1997 U.S. Senate Judiciary Subcommittee hearing, "we have strayed too far in the expansion of the federal government."


Pryor's close ties to industry have been critical in his rise to power. The single largest donor to his 2002 election campaign for attorney general was the Progress PAC, the political action committee of the Alabama Business Council. He founded the Republican Attorneys General Association (RAGA) with "the explicit aim of soliciting funds from the firearms, tobacco and paint industries and other industries facing state lawsuits over cancer deaths, lead poisoning, gunshots and consumer complaints," according to the Washington Post. Mike Moore, attorney general of Mississippi and the first attorney general to sue the tobacco companies, called Pryor "the biggest defender of tobacco companies of anyone I know. He did a better job of defending the tobacco companies than their own defense attorneys."


Pryor stood alone among the 50 state attorneys general in challenging the constitutionality of key portions of the Clean Water Act and the Endangered Species Act, asserting that land use and wildlife protection are "traditional areas of state environmental primacy" that should remain free of federal government regulation.





Janice Rogers Brown


nominated to the District of Columbia Circuit


Janice Rogers Brown, a rock song-quoting daughter of an African-American sharecropper, currently sits on the California Supreme Court as its first black woman justice. Prior to Brown's rise to the California Supreme Court, her legal and judicial career was closely connected to the Republican Party, which saw a judicial star in the black conservative. Republican Gov. Pete Wilson appointed her his legal affairs secretary, and then to a seat on the state Court of Appeals in 1994. The legal establishment was unimpressed, though, and prior to her appointment she received a "not qualified" rating from the American Bar Association.


Brown startled many legal observers with her speech in 2000 to the Federalist Society in Chicago, when she warned that, "Where government moves in ... the result is a debased, debauched culture, which finds moral depravity entertaining and virtue contemptible." Brown has denounced President Franklin Roosevelt's Supreme Court as transforming the Constitution into a "significantly different document," and the Democratic New Deal as the triumph of "our own socialist revolution." It is this fervid ideological opposition to government and regulation of private enterprise that causes Democratic opponents to denounce her lack of judicial fairness. Critics fear Brown's anti-government attacks, and opposition to regulation of corporate and financial interests that could block her impartiality on the federal court.





William Myers III


nominated to the 9th Circuit Court


Myers' long history of working for the law firm Holland & amp; Hart as a lobbyist on behalf of the mining and energy industries has galvanized a broad coalition of environmental, health and consumer groups against his nomination. Democrats fear that he will attempt to give private property rights greater weight in judicial decisions than attempts to protect public lands, water and endangered species. Of particular concern is Myers' nomination to the 9th circuit, whose jurisdiction over the Western states covers many of the same industries whose interests he has spent his career lobbying or representing in court.


Myers served from 2001-03 as solicitor general of the Department of Interior. In 2003, a federal court concluded that Myers had badly misinterpreted federal law in permitting a mining company to operate on public land in California. The National Congress of American Indians, a coalition of more than 250 tribal groups, opposes Myers, claiming that the policies he executed during his tenure at the Interior Department threatened native sites without consulting the tribes involved.


As reported last year, Myers' congressional lobbying in 2000 on behalf of major coal interests resulted in legislation that paved the way for a merger between two major coal companies that was later opposed by the Federal Trade Commission. The commission concluded that the merger was potentially anti-competitive and harmful to consumers and electricity users. These same coal interests routinely have cases before the 9th Circuit Court.


Finally, Democrats on the Senate Judiciary Committee point out that Myers has minimal courtroom experience and has never been a judge. He received a "qualified" rating from the American Bar Association, the ABA's lowest passing grade, with a minority voting "not qualified."





Priscilla R. Owen


nominated for the 5th Circuit Court


Priscilla Owen hired Karl Rove to run her first campaign for the Texas Supreme Court, where she has served as a justice since 1995. Critics charge that her confirmation to the New Orleans-based 5th Circuit Court of Appeals will unduly favor the oil and gas industry she represented as a lawyer for the bulk of her legal career with Andrews & amp; Kurth, for whom she worked from 1978-94. Her opinions thus far on the Texas court suggest strident opposition to reproductive rights, workers' rights, civil rights, consumers' rights and environmental protection.


Of special note has been White House counsel Alberto Gonzales' criticism of Owen as trying to implement "an unconscionable act of judicial activism" when they served on the Texas Supreme Court together, for interpreting a parental-consent statute to please antiabortion interests. Owen has proposed a particular view that abortion law be interpreted with a "religious awareness" standard.


While working at Andrews & amp; Kurth in Houston, Owen was involved repeatedly on behalf of oil, gas and other energy-industry clients -- who later became prime donors to her campaigns for the Texas Supreme Court. Texans for Public Justice, a legal watchdog group, reports that Owen favored donors to her judicial campaigns 85 percent of the time when they appeared before her in court.


Owen's hometown newspaper the Houston Chronicle has editorialized that Owen is "less interested in impartially interpreting the law than in pushing an agenda."





Richard Allen Griffin


nominated to the 6th Circuit Court


Critics cite Griffin's tendency toward restricting the legal rights and protections available to plaintiffs that have come before the Michigan Supreme Court, where he has served since 1990. In a 1994 case, the court reversed a decision written by Griffin that rejected a claim by striking workers being replaced by permanent employees that they were entitled to unemployment benefits under state law. At times his opinions have suggested that, if not bound by precedent, Judge Griffin would be inclined to inject personal ideology into judgment.


In Doe vs. Michigan Department of Corrections, prisoners brought a class action against the Michigan Department of Corrections to obtain health benefits on the basis of their HIV-positive status. While the case was pending, the U.S. Supreme Court decided that the Americans with Disabilities Act (ADA) did apply to prisons and prisoners. Griffin begrudgingly reversed a trial court decision against the prisoners. In his opinion, he stated that he found in favor of the prisoners "only because we are required to do so ... Were we allowed, we would ... affirm the holding of the trial court" that the prisoners' case should be dismissed.





David W. McKeague


nominated to the 6th Circuit Court


As a director of the Michigan law firm Foster, Swift, Collins & amp; Smith, in Lansing, Mich., David McKeague specialized in representing banking, utility, oil and gas clients such as First of America Bank, Shell Oil Company, Grace Petroleum Corporation and the Michigan Oil and Gas Association. After becoming a director of the firm, he was elevated by President H.W. Bush to a seat on the U.S. District Court in Michigan in 1992.


A coalition of environmental organizations oppose McKeague on the grounds that his legacy of work with the energy industry may predispose him toward anti-environmental judgments. Critics of McKeague's judgment observe an eagerness to get rid of cases on summary judgment, citing an opinion that one of a district court judge's important responsibilities lies in "weeding out frivolous" cases. How one defines such cases is of concern to his critics: McKeague was reversed by the 6th Circuit in several cases for "abuse of discretion," as in Northwood Wilderness Recovery Inc. vs. U.S. Forest Service, when an appellate court reversed a McKeague ruling that permitted a logging and clear-cutting project by the Forest Service without environmental analysis. The appellate court made its unanimous decision and called McKeague's ruling "arbitrary and capricious."


Opponents to his nomination also point toward his bias on the bench against workers' rights, civil rights and prisoners. In 1994, he sided with Republican Gov. John Engler of Michigan in a high-profile case against the U.S. Justice Department, which sought an investigation into widespread reports of sexual abuse of women in state prisons.





Henry Saad


nominated to the 6th Circuit Court


As a labor and employment lawyer in Michigan working for the firm Dickinson Wright, Saad focused largely on defending corporations -- including Ford Motor Co., General Electric and Eli Lilly & amp; Co. -- with a focus on averting sexual harassment and discrimination lawsuits. Critics have questioned whether his history representing major corporations has influenced his judicial track record on labor rights and personal injury on the Michigan State Court of Appeals, where Saad has sat since 1994. In a 1997 personal-injury case, Judge Saad dissented from the majority's ruling in favor of a plaintiff who had been severely injured in an automobile accident caused by the defendant's admitted negligent operation of her car. His colleagues in the majority criticized Saad's dissent as judicial activism, "reading language into the statutes that is not there and impermissibly steps into legislative territory." On the other hand, Saad authored two legal journal articles in the mid-1980s defending the rights of employees afflicted with AIDS to be free from discrimination in the workplace.


Democratic objections to Saad's nomination are more a matter of principle than an objection to his judicial record. Michigan's two senators, Carl Levin and Debbie Stabenow, blocked his nomination in part because Republicans would not allow votes on two of President's Clinton's judicial nominees, and to protest President Bush's breaking with a tradition of consulting with home-state senators about nominees to their district courts. Saad contributed $2,000 to George W. Bush's 2004 reelection campaign.





Dan Noyes is senior reporter at the Center for Investigative Reporting; Andy Isaacson is an associate of CIR. They both contributed to CIR's investigation into the financial history of judicial nominees. This article first appeared on Salon.com.





Publication date: 05/26/05

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