Bush's Other War: Judicial Nominations

Bush's Other War:
The Assault on Women's and Girls' Sexual and Reproductive Health and Rights

John G. Roberts: to the U.S. Court of Appeals for the District of Columbia and then as Chief Justice of the Supreme Court of the United States. While Deputy Solicitor General in the Department of Justice during the Reagan and George H.W. Bush administrations, Roberts submitted a brief to the U.S. Supreme Court in the Rust v. Sullivan case, arguing that the government had the right to prohibit doctors from discussing the option of safe abortions with their patients in federally-funded family planning programs. Though the case did not implicate Roe v. Wade, the brief further stated: "[w]e continue to believe that Roe was wrongly decided and should be overruled...[T]he Court's conclusion in Roe that there is a fundamental right to an abortion...finds no support in the text, structure, or history of the Constitution." As Deputy Solicitor General, Roberts also wrote an amicus curiae brief in support of Operation Rescue protestors who routinely blocked access to reproductive healthcare clinics, when their case came before the Court in Bray v. Alexandria Women's Health Clinic. The Senate confirmed his nomination on May 8, 2003 by voice vote. In September 2005, President Bush nominated Judge Roberts for the position of Chief Justice of the U.S. Supreme Court, following the death of Chief Justice William Rehnquist. During his confirmation hearings, Roberts first suggested that Supreme Court precedents could be subject to doctrinal erosion, then refused to answer when Chairman Specter asked him whether doctrinal erosion has occurred with Roe v. Wade. Roberts repeatedly stated that the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision was one of the places he would begin when judging a woman's right to choose, but he declined to elaborate. When asked about Roe v. Wade, Roberts's responses resembled those given by Justice Clarence Thomas during his confirmation hearing. On September 29, 2005, Roberts was confirmed as Chief Justice of the Supreme Court of the United States by a vote of 78-22.

Samuel Alito: as Associate Justice of the U.S. Supreme Court. Documents from the National Archives show that Alito is the architect of a long-term strategy to gut Roe v. Wade by burdening it with extensive restrictions, thereby incrementally undermining American women's access to safe, legal abortion services. While serving in the U.S. Solicitor General's office during the Reagan administration, Alito was actively involved in Thornburgh v. American College of Obstetricians and Gynecologists, which includes a government brief urging the Supreme Court to overrule Roe v. Wade. Later in 1985, while applying for a promotion within the Justice Department of the Reagan administration, Alito spelled out his opposition to a range of Supreme Court precedents that protect Americans' most fundamental rights and freedoms, including reproductive choice, religious liberty, voting rights, and the rights of the accused. In his job application he wrote that he was "particularly proud" of his contributions to recent cases arguing that "the Constitution does not protect a right to an abortion," a legal position "in which I personally believe very strongly." As a Judge on the Third Circuit U.S. Court of Appeals, Alito was the lone dissenter in Planned Parenthood of Southeastern Pennsylvania v. Casey who supported the notorious spousal notification requirement, which would have required pregnant women to notify their husbands as a prerequisite to obtaining a legal abortion. Alito claimed that this restriction did not place an "undue burden" on women, likening women's obligations to their husbands to underage girls' obligations to their parents. The Supreme Court disagreed, pointing out that "women do not lose their constitutionally protected liberty when they marry." Beyond reproductive rights, Alito's record on the bench has shown a consistent willingness to place employers' interests over the rights of individuals. He has issued numerous decisions that would make it harder for victims of race, gender, and disability-based discrimination to seek justice; he wrote a decision weakening the Family and Medical Leave Act (a law that enables workers to spend time with their families following a birth or medical emergency); and he sided with corporate polluters in a ruling that made it much more difficult for victims of pollution to sue, even when the polluters were guilty of breaking the law. The Senate voted 58-42 to confirm Samuel Alito to the Supreme Court on January 31, 2006.

Claude A. Allen: to the 4th Circuit Court of Appeals. Allen currently holds the number two position at HHS. During his tenure there, he has fought to double the budget for unproven and controversial abstinence-only-until-marriage programs to prevent pregnancy and sexually transmitted diseases (see Abstinence-Only Sex Education). Earlier, when Allen served as secretary of health and human resources for Republican Virginia Governor James S. Gilmore, he opposed efforts to extend Medicaid coverage for children, calling it an expansion of welfare. During the 1984 North Carolina senate race, Allen worked as a press person for Senator Jesse Helms (R-NC) and accused Helms's opponent, then-Governor James B. Hunt, of having links "with the queers." Allen faced such intense opposition after his nomination by President Bush on April 18, 2003, that the Senate sent the nomination back to the President for reconsideration. Despite continuing opposition over Allen's extreme views, President Bush renominated him on January 20, 2004, but the Senate did not take any further action on the nomination. Recognizing that the Senate was unlikely to approve Allen for a lifetime appointment, on January 6, 2005, President Bush named Allen as his chief domestic policy advisor. Allen resigned abruptly on February 9, 2006. In March Allen was charged with attempting to return merchandise he hadn't purchased to a Target store in Maryland. In August 2006 Allen pled guilty and was sentenced to 18 months of "probation before judgment".

Robert Conrad: to the U.S. Court of Appeals for the 4^th Circuit. Currently the Chief Judge of the United States District Court for the Western District to North Carolina, Robert Conrad has indicated his anti-choice stance on many occasions. From 1983-1986, Conrad served on the Board of Directors for the Charlottesville Pregnancy Center, which, on its website, displays pieces of misinformation, including that the risk of breast cancer may increase 140% following an abortion. He has published several op-ed pieces on topics ranging from Planned Parenthood as a radical pro-abortion fringe group, to characterizing safe sex as a “myopically misconceived liberal ‘solution’ that fails to address the promiscuity underlying the AIDS disease and others”. Most recently, and definitively indicating his inability to impartially interpret the law, Conrad published a 2005 article in the Pepperdine Law Review examining the practice of law as a “religious calling”, citing his involvement with the Charlottesville Pregnancy Center as an example. President Bush nominated Robert Conrad in July 2007 and his nomination is still pending in the Senate Judiciary Committee.

D. Michael Fisher: to the United States Court of Appeals for the Third Circuit. Fisher has publicly stated that he believes "abortion is wrong and every life is sacred, born or unborn." He has placed these personal beliefs front and center throughout his public career. Yet Fisher opposes both state funding for health services and mandatory coverage for contraceptives in prescription drug plans-both of which could prevent unwanted pregnancies. While serving as the Attorney General of Pennsylvania, Fisher filed an amicus brief in support of Nebraska's "partial-birth abortion ban" law, Stenberg v. Carhart (subsequently struck down by the U.S. Supreme Court because it did not include an exception for the health of the woman). As a state senator, he voted for one of the most restrictive abortion laws in the country, the Pennsylvania Abortion Control Act, and as of 2002, opposed all legislation to weaken it. The Act requires women to receive biased counseling and wait 24 hours before having an abortion; requires minors to obtain parental consent; mandates stricter state reporting standards for facilities that perform abortions; and, until it was overturned by the Supreme Court in 1992, declared it illegal for married women to seek safe abortions without first notifying their husbands. On December 9, 2003, the Senate confirmed Fisher's nomination by voice vote.

James Leon Holmes: to the 10th Circuit of the U.S. Court of Appeals. Former president of Arkansas Right to Life and one-time secretary of the Unborn Child Amendment Committee, Holmes helped form the Pro-Life Educational Alliance in Fayetteville, Arkansas. He once characterized abortion as "the simplest issue this country has faced since slavery was made unconstitutional," claiming that it merits the same response. A long-time advocate of personhood rights for fetuses and an opponent of women's equality, Holmes once wrote that "the feminist movement brought with it artificial contraception and abortion on demand, with recognition of homosexual liaisons soon to follow." A 1997 article co-authored by Holmes stated that "the wife is to subordinate herself to her husband." Holmes' first judicial nomination was to the U.S. District Court for the Eastern District. On May 1, 2003 the Senate Judiciary Committee voted along party lines to send the nomination to the Senate floor for a vote, but without a recommendation, which is the Committee's way of expressing displeasure with a selection. Nevertheless, on July 6, 2004 the Senate approved the nomination by a vote of 51-46. Two years later, on July 25, 2006 the Senate approved Holmes' nomination to the Court of Appeals by a vote of 67-30.

Carolyn Kuhl: to the 9th Circuit Court of Appeals. As Deputy Solicitor General during the Reagan administration, Kuhl urged the U.S. Supreme Court to overturn Roe v. Wade. As an attorney in private practice, Kuhl urged the U.S. Supreme Court to uphold the domestic gag rule, which prohibits health care providers at Title X-supported clinics from informing women facing an unintended pregnancy about all of their legal options. Kuhl's nomination stalled in the Senate because supporters could not achieve the 60 votes needed to end a filibuster. No further action on the nomination was taken.

Michael McConnell: to the 10th Circuit Court of Appeals. McConnell is opposed to Roe v. Wade and the Freedom of Access to Clinic Entrances Act (FACE), and supports a constitutional amendment banning safe, legal abortion. Approved by voice vote by the Senate November 15, 2002.

Texas Supreme Court Justice Priscilla Owen: to the 5th Circuit Court of Appeals. Justice Owen holds strong anti-choice views, leading to her consistent unwillingness to accept the Texas law allowing judicial bypasses of the parental notification requirement for minors seeking safe abortions. The Senate Judiciary Committee rejected the nomination September 5, 2002, but President Bush renominated Justice Owen on January 7, 2003. On a party-line vote of 10-9, the Senate Judiciary Committee moved this nomination forward to the full Senate on March 27, 2003. The nomination stalled in the Senate because supporters were unable to achieve the 60 votes needed to end a filibuster by opponents. In February 2005, President Bush renominated Owen for consideration by the 109th Congress, and on April 21, 2005, the Committee voted 10-8 along party lines to send Owen's nomination to the full Senate. Following a deal worked out by 7 Republican and 7 Democratic Senators to end the filibuster on the nomination, the Senate confirmed Owen's nomination by a vote of 56-43 on May 25, 2005.

Judge Charles Pickering: to the 5th Circuit Court of Appeals. Judge Pickering believes Roe v. Wade should be overturned. As a Mississippi state senator, he voted to call a convention to propose a constitutional amendment to outlaw safe abortion, and voted against state funding for family planning services. In 1976, as a Mississippi Republican Party official, Pickering chaired the subcommittee of the National Republican Party that approved a plank calling for an amendment to the U.S. constitution to make abortion illegal. The Senate Judiciary Committee rejected the nomination February 14, 2002, but the President renominated Judge Pickering on January 7, 2003. On October 2, 2003, the Senate Judiciary Committee voted 10-9 to move the nomination forward to the full Senate, but Pickering's supporters were unable to gain the support necessary to proceed to a vote, losing a cloture motion by a vote of 54-43 on October 30, 2003. In response, President Bush bypassed the constitutional checks provided by Senate confirmation, and on January 16, 2004, used a recess appointment to install Judge Pickering on the 5th Circuit Bench. This appointment was effective until the beginning of the next Senate session (in January 2005), barring confirmation of Pickering's lifetime appointment. On February 6, 2004-three weeks after the recess appointment-Bush resubmitted the nomination to the Senate, but no further action was taken. In December 2004, Pickering announced that he would retire from the bench at the close of his interim appointment.

Bill Pryor: to the U.S. Court of Appeals for the 11th Circuit. Pryor's record shows a consistent preference for the power of the state over the rights of individuals. He has opposed elements of the Violence Against Women Act and the Civil Rights Act of 1964, and he recently filed an amicus brief in a pending case before the Supreme Court that would leave state employees with no recourse for violations of the Family and Medical Leave Act. Pryor has in the past referred to Roe v. Wade as "the worst abomination of constitutional law in our history." At a 1997 rally, he said, "I will never forget January 22, 1973 [the day the Roe v. Wade decision was handed down], the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children." At his hearing before the Senate Judiciary Committee on June 11, 2003, he reconfirmed his opposition to Roe v. Wade, stating, "I believe that not only is the case unsupported by the text and structure of the Constitution, but it has led to a morally wrong result...It has led to the slaughter of millions of innocent unborn children." Following weeks of debate about Pryor's qualifications and his refusal to disclose having solicited political contributions, the Senate Judiciary Committee voted along party lines to send the nomination to the full Senate. When brought up for consideration on July 31, 2003, supporters fell 7 votes short of the 60 needed to end debate on the nomination. On November 7, 2003, they fell 9 votes short. In response, for the second time on a judicial nomination (see Pickering above), President Bush bypassed the Senate, and on February 20, 2004, used a recess appointment to install Judge Pryor on the 11th Circuit Bench. In a March 5th letter to the 11th Circuit Court of Appeals, Sen. Edward Kennedy (D-MA) challenged the constitutionality of the appointment, since it was made during the week-long President's Day break, rather than an actual congressional recess. The Court rejected Sen. Kennedy's petition on June 10, 2004. The recess appointment was effective until January 2005. In February 2005, President Bush renominated Pryor in the 109th Congress, and on May 12, 2005, the Senate Judiciary Committee approved the nomination on a 10-8 party-line vote. Following a deal in the Senate to allow votes on certain nominations in order to preserve the filibuster option, on June 9, 2005, the Senate approved Pryor's lifetime nomination by a vote of 53-45.

California Supreme Court Justice Janice Rogers Brown: to the DC Court of Appeals. As an ultra-conservative member of the California court, Justice Brown's written opinions often show a lack of judicial even-handedness. In one particularly egregious example, she dissented from the court majority's 1997 decision to overturn a statute that prohibited minors from obtaining safe abortions without parental consent. Justice Brown went against the majority's finding that the statute failed to ensure the right to privacy guaranteed to all people—including minors—by the state constitution. In her 30-page dissent, Brown claimed that abortion providers were biased by the desire to make a profit, but the only evidence cited was provided by CareNet (then known as the Christian Action Council), a religious group that runs hundreds of anti-choice "crisis pregnancy centers." On a party line vote of 10-9 on November 7, 2003, the Senate Judiciary Committee moved the nomination forward to the full Senate, where no further action was taken. In February 2005, President Bush renominated Justice Brown in the 109th Congress, and on April 21, the Judiciary Committee voted 10-8 along party lines to send Brown's nomination to the full Senate. Following a deal worked out by seven Republican and seven Democratic senators to end the filibuster on the nomination, the Senate confirmed Brown's nomination by a vote of 56-43 on June 8, 2005.

Dennis Shedd: : to the 4th U.S. Circuit Court of Appeals. In his years at the South Carolina U.S. District Court, Judge Shedd has consistently dismissed sexual harassment cases, all the while offering support for anti-abortion groups and activities. In 2000, Judge Shedd excused South Carolina Citizens for Life from complying with campaign finance laws, thereby overruling a State Ethics Commission decision. And in a decision that was unanimously reversed by the Supreme Court, he ruled unconstitutional the Driver's Privacy Protection Act (DPPA), an act that would have stopped anti-abortion groups from using motor vehicle records to track down names and addresses of doctors and patients at women's clinics. Perhaps most troubling is the lack of information on Judge Shedd's stance on a number of issues. He has published only about 60 decisions since 1990, even though he ruled on more than 5,000 cases and submitted more than 1,500 unpublished opinions. Judge Shedd was confirmed by a Senate vote November 19, 2002.

Jeffrey S. Sutton: to the 6th U.S. Circuit Court of Appeals. After a freshman at a state university claimed she was raped by two football players in her dorm, neither the university nor the state pursued charges against them, so she sued in federal court. When the case (United States v. Morrison) eventually moved to the Supreme Court in 2000, Sutton filed an amicus brief on behalf of two states arguing that the section of the Violence Against Women Act allowing women to sue their attackers in federal court was unconstitutional. The Senate confirmed Jeffrey S. Sutton on April 29, 2003 by a vote of 52-41.

Diane Sykes: to the U.S. Court of Appeals for the 7th Circuit. Current Secretary of Labor, Health, and Human Services and then-Wisconsin governor Tommy Thompson appointed Sykes to the Wisconsin Supreme Court, despite concerns that she was unqualified. She has made rulings according to her private views instead of on the legal merits of the cases before her. Although generally tough on crime, Sykes showed unusual leniency toward two anti-abortion protesters who had long histories of arrests for using extreme measures to block women from entering family planning clinics. Judge Sykes allowed them extraordinary leeway to argue that the social value of their protests outweighed their breaking the law, and she ignored the violence that occurred. Sykes told the defendants, "I respect you a great deal for having the courage of your convictions and for the ultimate goals that you sought to achieve by this conduct." On July 6, 2004, the Senate approved her nomination by a vote of 70-27.

Timothy Tymkovich: to the 10th Circuit Court of Appeals. As Colorado Solicitor General, Tymkovich defended an amendment to the Colorado Constitution that prohibited the state from paying for safe, legal abortions in the case of rape and incest, despite a clear conflict with federal Medicaid law. Both the District Court and a unanimous three-judge panel of the 10th Circuit Court of Appeals opposed the amendment, pointing out that every federal court of appeals addressing the issue had reached the same conclusion. Tymkovich appealed to the Supreme Court, which, by a unanimous vote, refused to hear the case. Several months later, Tymkovich, testifying before the Senate Governmental Affairs Committee, continued to insist that federal law did not require States to pay for legal abortion under any circumstances. The Senate confirmed his nomination on April 1, 2003 by a vote of 58-41.