Judges and Judiciary
Jan. 18, 2003
Hand Picked
Forum Column - By Erwin Chemerinsky - President George W. Bush's renomination of Charles Pickering Sr. and Priscilla Owen for the U.S. Circuit Courts of Appeals ensures that there will be continued, intense political fights over the judiciary. Bush could have chosen the path of consensus and selected moderates that both Democrats and Republicans could support. Instead, Bush chose to renominate Pickering and Owen, both of whom were rejected by the Senate Judiciary Committee last year.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Forum Column
By Erwin Chemerinsky
President George W. Bush's renomination of Charles Pickering Sr. and Priscilla Owen for the U.S. Circuit Courts of Appeals ensures that there will be continued, intense political fights over the judiciary. Bush could have chosen the path of consensus and selected moderates that both Democrats and Republicans could support. Instead, Bush chose to renominate Pickering and Owen, both of whom were rejected by the Senate Judiciary Committee last year.
Additionally, Bush announced that he again was nominating to the federal Courts of Appeals staunch conservatives such as Carolyn Kuhl, Terrence Boyle, Miguel Estrada and Jeffrey Sutton, who failed to gain approval in the last session of Congress.
The president certainly has the constitutional authority to nominate anyone that he wants to the federal bench. But the Constitution is clear that the Senate has the authority to deny confirmation to presidential nominees. Now the Senate must act to deny confirmation, through filibusters if necessary, to nominees who have shown that they are out of the mainstream and who are hostile to civil rights for racial minorities and women.
It is particularly important that the Senate follow its long-standing tradition of respecting the views of home state senators and refrain from moving nominees over their objections.
Bush's choice to renominate Pickering and Owen is particularly troubling because both were denied confirmation because of serious ethical considerations, in addition to their very conservative views.
For example, the transcript of the Senate Judiciary Committee's hearing on the Pickering nomination reveals shocking admissions of inappropriate behavior by him. Pickering presided over a case in which an individual was convicted after a trial for burning a cross on the lawn of an interracial couple in Mississippi. Under the federal sentencing guidelines, the defendant was to be given a seven-year prison sentence.
Pickering was convinced that this was too long and pressured the government to change its position. Pickering even went so far as to threaten the government's lawyers that unless they agreed to a reduction in the sentence, he would overturn the conviction on his own and order a new trial.
Despite this inappropriate threat, Pickering was not successful in persuading the federal attorneys handling the case, so he contacted Assistant Attorney General Frank Hunger. At his hearing, Pickering admitted to making this call and discussing the case with Hunger. This is a clear and blatant violation of the rules of judicial ethics, which prohibit a judge from speaking to a lawyer for one side of a case without the opportunity for the other side to be present and participate.
Under the rules, it does not matter that Pickering and Hunger were old friends. Pickering's call was clearly about the case and was with a high-level attorney in the Justice Department that was prosecuting the matter.
At his hearings, Pickering also admitted that he asked lawyers who appear before him to write to the Senate Judiciary Committee letters to support his confirmation. In response to questioning, Pickering said that he contacted present and former litigants and parties in cases in his court and asked them to endorse his confirmation to the 5th U.S. Circuit Court of Appeals.
This is an abuse of his position as a judge. The reality is that it is very difficult for a lawyer or party with a case pending before a judge to say no to such a request. The rules of judicial ethics prevent judges from using their office for such personal gain. Judges, for example, are strictly forbidden from engaging in any fund raising or allowing their offices to be used for it. Soliciting letters from lawyers and parties is no different.
The Senate Judiciary Committee also rejected Owen in part because of concerns over her judicial ethics. Owen took large contributions from oil companies, such as Enron, and then consistently ruled in their favor on the bench.
After Sen. Trent Lott's astounding remark that the country would have been better off if segregationist Strom Thurmond had been elected President in 1948, many thought that, at the very least, Bush would be more sensitive to civil rights issues in his judicial picks. Unfortunately, Bush's picks instead show that he continues to use judicial nominations to please the far-right wing of the Republican party.
Pickering, for example, has a long history of opposing civil rights laws. Carolyn Kuhl, nominated for the 9th U.S. Circuit Court of Appeals, co-wrote a brief for the U.S. government arguing that Bob Jones University should have tax-exempt status despite its discriminatory policies. Kuhl also co-wrote a brief urging the Supreme Court to overturn Roe v. Wade.
If Bush had selected moderate Republicans, the Senate quickly would have confirmed them. Last session, for example, the Democratic Senate confirmed nominees such as Harrison Hartz for the 10th U.S. Circuit Court of Appeals and Reena Raggi for the 2nd U.S. Circuit Court of Appeals. But by selecting ideologues, and some with ethical problems, Bush has shown that he has no interest in compromising with Senate Democrats and selecting consensus nominees for judgeships.
Senators, both Democrats and Republicans, who care about civil rights must act decisively to reject nominees such as Pickering, Owen and Kuhl for lifetime appointments to the federal bench. They must make it clear that it is Bush, through his picks, who is politicizing the judicial confirmation process.
These nominations for the federal bench are profoundly important. The Supreme Court hears only 75 cases a year, meaning that in the vast majority of instances the Courts of Appeals have the last word. Senators must act to ensure that the federal judiciary is not dominated by the right wing of the Republican party and that those presenting civil rights claims have a fair chance in the courts.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California.
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