Separation of Powers

George W. Bush’s presidency was marked by an effort to concentrate increasing federal power in the executive branch. In the wake of 9/11, invoking the idea of a wartime president, Bush resisted judicial review of his security decisions, undermined the authority of the legislature by issuing a record number of signing statements — decrees selectively invalidating parts of laws — and implemented many controversial measures in the name of national security.

The Bush Presidential Library and Museum’s display labeled “Separating Powers” glosses over the Bush administration’s interference with the balance of powers and focuses largely on Bush’s two successful Supreme Court appointments, Chief Justice John Roberts and Justice Samuel Alito. Both appointees have impacted the ideological makeup of the Supreme Court, skewing court rulings in a conservative direction that particularly favors big business interests.

Unmentioned are Bush’s even more controversial judicial nominees, including rejected Supreme Court nominee Harriet Miers and a number of appeals court nominees, who embodied Bush’s effort to push the federal judiciary to the right. Facing complaints about their poor qualifications or troubling histories, some of Bush’s nominees were forced to withdraw from nomination, while those who were confirmed will influence the federal court system for decades.

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The Branches Of Government walk

Bush Library Highlights The Balance Of Powers

The Bush Library’s “Separating Powers” Section Explains The Balance Between The Executive, Judicial, And Legislative Branches. The following photograph is from the George W. Bush Presidential Library and Museum:

[George W. Bush Presidential Library and Museum Display, photo taken May 3-4, 2013]

Bush Undercut Balance by Increasing Executive Power

Bush Administration Pushed For “Vastly Increased Power” As A “Unitary Executive.” According to the Center for Public Integrity, “The Executive Office of the President and the Bush administration in general have drawn widespread criticism for their push toward a ‘unitary executive,’ a presidency with vastly increased power to interpret and implement the law. The administration’s decision to authorize warrantless wiretapping, its use of signing statements to pick and choose which portions of legislation to execute, its push for unrestricted detention of suspects in the war on terror, and its broad and aggressive assertion of executive privilege all drew bipartisan criticism.” [Center for Public Integrity, 12/10/08]

Bush Undercut Balance By Increasing Executive Power

Bush Asserted Presidential Authority Over Congress And Resisted Judicial Review Of Executive Decisions. According to the Center for Public Integrity, “Either way, with its opposition to both judicial review of its decisions (regarding handling of detainees, for example) and assertions of authority over Congress (as seen through its signing statements and refusal to respond to congressional subpoenas), the Bush administration has pushed executive power to a level unseen for many years.” [Center for Public Integrity, 12/10/08]

Bush Used “Signing Statements” To Selectively Override Legislation. According to the New York Times, “Bush’s use of signing statements – official legal documents issued by a president the day he signs bills into law, instructing executive officials how to implement the statutes – led to fierce controversy. Bush frequently used signing statements to declare that provisions in the bills he was signing were unconstitutional constraints on executive power, claiming that the laws did not need to be enforced or obeyed as written. The laws he challenged included a torture ban and requirements that Congress be given detailed reports about how the Justice Department was using the counter-terrorism powers in the Patriot Act.” [New York Times, 3/9/09]

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Bush “Broke All Records” With Number Of Signing Statements. According to the New York Times, “Dating back to the 19th century, presidents have occasionally signed a bill while declaring that one or more provisions were unconstitutional. Presidents began doing so more frequently starting with the Reagan administration. But Bush broke all records, using signing statements to challenge about 1,200 bill sections over his eight years in office, about twice the number challenged by all previous presidents combined, according to data compiled by Christopher Kelley, a political science professor at Miami University in Ohio.” [New York Times, 3/9/09]

Bush And Cheney Sought To “Reclaim” Increased Presidential Authority. According to the Washington Post, “The clash over the secret domestic spying program is one slice of a broader struggle over the power of the presidency that has animated the Bush administration. George W. Bush and Dick Cheney came to office convinced that the authority of the presidency had eroded and have spent the past five years trying to reclaim it. From shielding energy policy deliberations to setting up military tribunals without court involvement, Bush, with Cheney’s encouragement, has taken what scholars call a more expansive view of his role than any commander in chief in decades. With few exceptions, Congress and the courts have largely stayed out of the way, deferential to the argument that a president needs free rein, especially in wartime.” [Washington Post, 12/21/05]

Bush Administration “Asserted Its War-Making Authority” With Controversial Measures. According to the Washington Post, “Even before the NSA surveillance program, the Bush administration has asserted its war-making authority in detaining indefinitely U.S. citizens as enemy combatants, denying prisoners access to lawyers or courts, rejecting in some cases the applicability of the Geneva Conventions, expanding its interrogation techniques to include harsher treatment and establishing secret terrorist prisons in foreign countries.” [Washington Post, 12/21/05]

Democrats And Republicans Criticized Bush’s Authorization Of Eavesdropping Program. According to the Washington Post, “But the disclosure of Bush’s eavesdropping program has revived the issue, and Congress appears to be growing restive about surrendering so much of its authority. Democrats and even key Republicans maintain Bush went too far — and may have even violated the law — by authorizing the National Security Agency to eavesdrop on U.S. citizens’ overseas telephone calls in search of terrorist plots without obtaining warrants from a secret intelligence court.” [Washington Post, 12/21/05]

The Judiciary jud

Bush Library Emphasizes Fair, Impartial Judges

The Bush Library’s “Separating Powers” Section Quotes Bush: Judges Must “Not Legislate From The Bench.” The following photograph is from the George W. Bush Presidential Library and Museum:

law

[George W. Bush Presidential Library and Museum Display, photo taken May 3-4, 2013]

Bush Appointed Ideologically Conservative Judges, Pushing Judiciary to the Right

Bush Escalated His Republican Predecessors’ Practice Of Evaluating Judicial Candidates’ Adherence To Conservative Philosophies. According to the New York Times, “The debate intensified when Reagan came to power. His administration scrapped the ad hoc, patronage-style process previous presidents had used and began vetting potential nominees to find those who shared its philosophy. After the first George Bush became president in 1989, his legal team continued that approach. His son’s 2000 victory revived those vetting practices and — with the participation of Mr. Bush’s political adviser Karl Rove — escalated them.” [New York Times, 10/29/08]

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Study: Bush Prioritized Ideology Over Diversity In Judicial Appointments. According to Oregon State University, “The judicial appointments of former president George W. Bush suggests that his motivation for appointing nontraditional judges was driven more by ideology and strategy than concerns for diversity, a new analysis shows. The examination of all the federal judicial appointments over the two terms of the Bush presidency show that while he did make a number of diverse appointments, especially with Hispanics, overall the federal courts did not gain in the number of minority judges during Bush’s tenure. […] In contrast, the study shows that Clinton often stressed diversity and representation over ideology. He often picked moderate and conservative minority and female judges even though they did not necessarily reflect his own political philosophies.” [Oregon State University, 6/25/09]

Bush Made Push For Conservative Judges A Priority. According to the Los Angeles Times, “While Republicans find themselves somewhat divided heading into the election year, Bush is widely praised for his record of pressing for conservative judges. ‘From Day One, President Bush made the judiciary a top priority, and he fought very hard for his nominees,’ said Washington attorney Bradford Berenson, who worked in the White House counsel’s office in Bush’s first term. ‘He was less willing to compromise than President Clinton. As a result, in raw numbers, he may end with somewhat fewer judges than Clinton had.’” [Los Angeles Times, 1/2/08]

When Bush Left Office, Republican Appointees Held 60 Percent Of Appeals Courts Seats. According to the Los Angeles Times, “After nearly seven years in the White House, President Bush has named 294 judges to the federal courts, giving Republican appointees a solid majority of the seats, including a 60%-to-40% edge over Democrats on the influential U.S. appeals courts. […] Among the 12 regional appeals courts, all but one are closely split or have a Republican majority.” [Los Angeles Times, 1/2/08]

Bush’s Appointments Will Affect Judicial System For Decades. According to the New York Times, “[Bush] noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and that represents one of his most enduring accomplishments. While a two-term president typically leaves his stamp on the appeals courts — Bill Clinton appointed 65 judges, Mr. Bush 61 — Mr. Bush’s judges were among the youngest ever nominated and are poised to have an unusually strong impact.” [New York Times, 10/29/08]

Bush Removed American Bar Association From Its Role In Screening Judicial Nomination Candidates. According to USA Today, “Within weeks of George W. Bush’s inauguration, he revealed a systematic, aggressive and tightly controlled approach to making lifetime appointments to the federal bench. The new president ejected the American Bar Association from the screening process, ending its half-century role of reviewing candidates’ credentials before a nomination.” [USA Today, 3/14/08]

Study: Bush Appointees “Most Conservative On Record” On Civil Rights. According to the University of Houston, “Judges appointed by President George W. Bush are the most conservative on record when it comes to civil rights and liberties, according to a new study by a political science professor at the University of Houston. Bush judicial appointees are significantly more conservative than even the very conservative voting record of jurists appointed by Presidents Ronald Reagan and Bush Sr. in the realm of civil rights and liberties, said Robert Carp, professor of political science at UH. When it comes to these decisions, the Bush team is a full 5 percentage points more conservative than even the trial judges appointed by Presidents Reagan and Bush Sr.” [University of Houston, 2/6/06]

Bush’s District Court Appointees “Particularly Conservative On Civil Liberties Cases.”  According to the Associated Press, “Bush’s district appointees stand out as particularly conservative on civil liberties cases such as abortion, freedom of speech and gay rights, Carp found. On these matters, Bush’s district judgeships were rated 28 percent liberal in Carp’s study. That put them well to the right of jurists appointed by Presidents Nixon, at 38 percent, and Ford, at 40 percent, and slightly to the right of Reagan and the first President Bush, both of whom were rated 32 percent liberal.” [Associated Press, 7/10/05]

Bush, Reagan Appointees Much More Likely To Rule Against Abortion Rights. According to the Associated Press, “And according to NARAL Pro-Choice America, appeals court judges appointed by President Reagan and the two Bushes have been four times more likely to issue ‘anti-choice rulings’ than judges appointed by other presidents.” [Associated Press, 7/10/05]

AP: Bush Appellate Appointees “Make Up A Solidly Conservative Crowd That Tends To Lean Bush’s Way On The Big Issues Of The Day.” According to the Associated Press: “Since Bush’s appellate judges have only gradually taken their seats on benches around the country, and the cases that they draw run the gamut, it’s still early to chart their impact on specific issues. But already it is clear that these judges make up a solidly conservative crowd that tends to lean Bush’s way on the big issues of the day. So far, Bush’s appointees to the appeals court are showing patterns very close to judges of his Republican predecessors in ideologically contested cases, according to law professor Cass Sunstein at the University of Chicago, where the Chicago Judges Project is tracking the federal judiciary.” [Associated Press, 7/10/05]

Alliance For Justice: Bush “Packed The Courts” With “Extremists.” According to the New York Times, “But Nan Aron of the Alliance for Justice, a liberal legal group, said Mr. Bush had ‘packed the courts’ with ‘extremists’ who share an agenda of hostility to regulations and the rights of women, minorities and workers. ‘George W. Bush has made great strides in cementing the ultraconservative hold on the federal courts which began with Ronald Reagan in the 1980s, when he set out to impose his agenda on the country through his court appointments,’ Ms. Aron said.” [New York Times, 10/29/08]

Federalist Society Founder: After Bush, Appellate Courts More Aligned With Conservative Ideology Than Ever. According to the New York Times, “David M. McIntosh, a co-founder and vice-chairman of the Federalist Society, said the nation’s appeals courts were now more in line with a conservative judicial ideology than at any other time in memory. ‘The level of thoughtfulness among sitting judges on constitutional theory and the role of judges is higher than certainly any other time in my life,’ said Mr. McIntosh, a former Reagan legal team member and Indiana congressman. ‘For somebody who has spent a lot of my life promoting those ideas, it’s very encouraging to see.’” [New York Times, 10/29/08]

Nearly Half Of Bush’s Appeals Court Judges Are Federalist Society Associates. According to the New York Times, “The White House ended the American Bar Association’s traditional role in evaluating potential nominees’ qualifications. But the administration had other help: the Federalist Society, whose size and influence has rapidly grown since the 1980s. The society does not formally suggest or vet nominees. Rather, through its conferences and publications, it enables lawyers to identify themselves as committed to a conservative judicial ideology, said Steven M. Teles, the author of ‘The Rise of the Conservative Legal Movement: The Battle for Control of the Law.’ About 46 percent of Mr. Bush’s appeals court judges are Federalist Society associates, according to an Alliance for Justice review.” [New York Times, 10/29/08]

Bush: “We Need More Judges Like Clarence Thomas And Antonin Scalia.” According to Bush’s prepared remarks, “I said America needed judges who believed that the Constitution means what it says. When asked if I had any idea in mind of the kind of judges I would appoint, I had a ready answer: We need more judges like Clarence Thomas and Antonin Scalia.” [Bush Prepared Remarks, 10/7/08]

Bush Appointed Ideologically Conservative Judges, Pushing Judiciary to the Right

Bush Escalated His Republican Predecessors’ Practice Of Evaluating Judicial Candidates’ Adherence To Conservative Philosophies. According to the New York Times, “The debate intensified when Reagan came to power. His administration scrapped the ad hoc, patronage-style process previous presidents had used and began vetting potential nominees to find those who shared its philosophy. After the first George Bush became president in 1989, his legal team continued that approach. His son’s 2000 victory revived those vetting practices and — with the participation of Mr. Bush’s political adviser Karl Rove — escalated them.” [New York Times, 10/29/08]

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Study: Bush Prioritized Ideology Over Diversity In Judicial Appointments. According to Oregon State University, “The judicial appointments of former president George W. Bush suggests that his motivation for appointing nontraditional judges was driven more by ideology and strategy than concerns for diversity, a new analysis shows. The examination of all the federal judicial appointments over the two terms of the Bush presidency show that while he did make a number of diverse appointments, especially with Hispanics, overall the federal courts did not gain in the number of minority judges during Bush’s tenure. […] In contrast, the study shows that Clinton often stressed diversity and representation over ideology. He often picked moderate and conservative minority and female judges even though they did not necessarily reflect his own political philosophies.” [Oregon State University, 6/25/09]

Bush Made Push For Conservative Judges A Priority. According to the Los Angeles Times, “While Republicans find themselves somewhat divided heading into the election year, Bush is widely praised for his record of pressing for conservative judges. ‘From Day One, President Bush made the judiciary a top priority, and he fought very hard for his nominees,’ said Washington attorney Bradford Berenson, who worked in the White House counsel’s office in Bush’s first term. ‘He was less willing to compromise than President Clinton. As a result, in raw numbers, he may end with somewhat fewer judges than Clinton had.’” [Los Angeles Times, 1/2/08]

When Bush Left Office, Republican Appointees Held 60 Percent Of Appeals Courts Seats. According to the Los Angeles Times, “After nearly seven years in the White House, President Bush has named 294 judges to the federal courts, giving Republican appointees a solid majority of the seats, including a 60%-to-40% edge over Democrats on the influential U.S. appeals courts. […] Among the 12 regional appeals courts, all but one are closely split or have a Republican majority.” [Los Angeles Times, 1/2/08]

Bush’s Appointments Will Affect Judicial System For Decades. According to the New York Times, “[Bush] noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and that represents one of his most enduring accomplishments. While a two-term president typically leaves his stamp on the appeals courts — Bill Clinton appointed 65 judges, Mr. Bush 61 — Mr. Bush’s judges were among the youngest ever nominated and are poised to have an unusually strong impact.” [New York Times, 10/29/08]

Bush Removed American Bar Association From Its Role In Screening Judicial Nomination Candidates. According to USA Today, “Within weeks of George W. Bush’s inauguration, he revealed a systematic, aggressive and tightly controlled approach to making lifetime appointments to the federal bench. The new president ejected the American Bar Association from the screening process, ending its half-century role of reviewing candidates’ credentials before a nomination.” [USA Today, 3/14/08]

Study: Bush Appointees “Most Conservative On Record” On Civil Rights. According to the University of Houston, “Judges appointed by President George W. Bush are the most conservative on record when it comes to civil rights and liberties, according to a new study by a political science professor at the University of Houston. Bush judicial appointees are significantly more conservative than even the very conservative voting record of jurists appointed by Presidents Ronald Reagan and Bush Sr. in the realm of civil rights and liberties, said Robert Carp, professor of political science at UH. When it comes to these decisions, the Bush team is a full 5 percentage points more conservative than even the trial judges appointed by Presidents Reagan and Bush Sr.” [University of Houston, 2/6/06]

Bush’s District Court Appointees “Particularly Conservative On Civil Liberties Cases.” According to the Associated Press, “Bush’s district appointees stand out as particularly conservative on civil liberties cases such as abortion, freedom of speech and gay rights, Carp found. On these matters, Bush’s district judgeships were rated 28 percent liberal in Carp’s study. That put them well to the right of jurists appointed by Presidents Nixon, at 38 percent, and Ford, at 40 percent, and slightly to the right of Reagan and the first President Bush, both of whom were rated 32 percent liberal.” [Associated Press, 7/10/05]

Bush, Reagan Appointees Much More Likely To Rule Against Abortion Rights. According to the Associated Press, “And according to NARAL Pro-Choice America, appeals court judges appointed by President Reagan and the two Bushes have been four times more likely to issue ‘anti-choice rulings’ than judges appointed by other presidents.” [Associated Press, 7/10/05]

AP: Bush Appellate Appointees “Make Up A Solidly Conservative Crowd That Tends To Lean Bush’s Way On The Big Issues Of The Day.” According to the Associated Press: “Since Bush’s appellate judges have only gradually taken their seats on benches around the country, and the cases that they draw run the gamut, it’s still early to chart their impact on specific issues. But already it is clear that these judges make up a solidly conservative crowd that tends to lean Bush’s way on the big issues of the day. So far, Bush’s appointees to the appeals court are showing patterns very close to judges of his Republican predecessors in ideologically contested cases, according to law professor Cass Sunstein at the University of Chicago, where the Chicago Judges Project is tracking the federal judiciary.” [Associated Press, 7/10/05]

Alliance For Justice: Bush “Packed The Courts” With “Extremists.” According to the New York Times, “But Nan Aron of the Alliance for Justice, a liberal legal group, said Mr. Bush had ‘packed the courts’ with ‘extremists’ who share an agenda of hostility to regulations and the rights of women, minorities and workers. ‘George W. Bush has made great strides in cementing the ultraconservative hold on the federal courts which began with Ronald Reagan in the 1980s, when he set out to impose his agenda on the country through his court appointments,’ Ms. Aron said.” [New York Times, 10/29/08]

Federalist Society Founder: After Bush, Appellate Courts More Aligned With Conservative Ideology Than Ever. According to the New York Times, “David M. McIntosh, a co-founder and vice-chairman of the Federalist Society, said the nation’s appeals courts were now more in line with a conservative judicial ideology than at any other time in memory. ‘The level of thoughtfulness among sitting judges on constitutional theory and the role of judges is higher than certainly any other time in my life,’ said Mr. McIntosh, a former Reagan legal team member and Indiana congressman. ‘For somebody who has spent a lot of my life promoting those ideas, it’s very encouraging to see.’” [New York Times, 10/29/08]

Nearly Half Of Bush’s Appeals Court Judges Are Federalist Society Associates. According to the New York Times, “The White House ended the American Bar Association’s traditional role in evaluating potential nominees’ qualifications. But the administration had other help: the Federalist Society, whose size and influence has rapidly grown since the 1980s. The society does not formally suggest or vet nominees. Rather, through its conferences and publications, it enables lawyers to identify themselves as committed to a conservative judicial ideology, said Steven M. Teles, the author of ‘The Rise of the Conservative Legal Movement: The Battle for Control of the Law.’ About 46 percent of Mr. Bush’s appeals court judges are Federalist Society associates, according to an Alliance for Justice review.” [New York Times, 10/29/08]

Bush: “We Need More Judges Like Clarence Thomas And Antonin Scalia.” According to Bush’s prepared remarks, “I said America needed judges who believed that the Constitution means what it says. When asked if I had any idea in mind of the kind of judges I would appoint, I had a ready answer: We need more judges like Clarence Thomas and Antonin Scalia.” [Bush Prepared Remarks, 10/7/08]

Judicial Nominees

Bush Library Highlights Supreme Court Appointees Roberts And Alito

Bush Library’s “Separating Powers” Section Touts Bush’s Two Successful Supreme Court Appointments. The following photograph is from the George W. Bush Presidential Library and Museum:

nominees

[George W. Bush Presidential Library and Museum Display, photo taken May 3-4, 2013]

Bush Appointees Have Made Supreme Court More Conservative, Pro-Business

NYT: In First Five Years Under Roberts, Supreme Court “Became The Most Conservative One In Living Memory.” According to the New York Times, “When Chief Justice John G. Roberts Jr. and his colleagues on the Supreme Court left for their summer break at the end of June, they marked a milestone: the Roberts court had just completed its fifth term. In those five years, the court not only moved to the right but also became the most conservative one in living memory, based on an analysis of four sets of political science data.” [New York Times, 7/24/10]

The Roberts Court “Is The Most Conservative Since The Early 1970s.” According to Mother Jones, “By several measures, the court headed by Chief Justice John Roberts is the most conservative since the early 1970s, when Richard Nixon named Warren Burger to replace the famously liberal Earl Warren. Not only is its most conservative member (Clarence Thomas) nearly as conservative as the Burger court’s most conservative member (future Chief Justice William Rehnquist), its most liberal member (Ruth Bader Ginsburg) is considerably less liberal than previous justices on the left side of the spectrum.” [Mother Jones, 6/26/12]

Roberts Court “Far Friendlier To Business Than Those Of Any Court Since At Least World War II.” According to the New York Times, “While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II. In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.” [New York Times, 5/5/13]

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Alito and Roberts Are “The Two Justices Most Likely To Vote In Favor Of Business Interests Since 1946.” According to the New York Times, “Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.” [New York Times, 5/5/13]

Roberts Court Conservatives Are Increasingly Siding With Corporate Interests Represented By Chamber Of Commerce. According to the Constitutional Accountability Center, “Nonetheless, the Chamber had a banner term in terms of wins and losses, with the Chamber reaching the finish line with a perfect 7-0 win/loss record. Not since the October 1991 Term has the Chamber been undefeated before the Court.  But the Chamber’s undefeated streak only tells part of the story of the Chamber’s success this Term.  Just as striking is the fact that the Chamber went head to head against the Solicitor General and the Obama Administration five out of seven times, coming out on top every time.  This reflects a broader trend that the Court is becoming increasingly ideologically divided in cases that are important to corporate interests, with the Court’s conservative Justices taking the Chamber’s side at historic levels, particularly in close cases. […] Overall now the Chamber has prevailed in 68% of its cases before the Roberts Court (60 of 88 from 2006-2012). The Chamber’s success has grown significantly since the stable Rehnquist Court, when it was just 56% (45 of 80 cases from 1994-2005), and is dramatically higher than its success rate before the stable Burger Court, when it was just 43% (15 of 35 from 1981-86).”

increasing support

[Constitutional Accountability Center, 6/29/12, internal citations removed]

Roberts And Alito Both Joined 5-4 Majority In Citizens United, Opening Doors To Unlimited Corporate Money In Elections. According to UPI, “The much-criticized 5-4 Supreme Court ruling in Citizens United vs. Federal Election Commission came in January 2010. It swept away federal restrictions on independent ‘electioneering communications’ by corporations and unions, and similar restrictions in two dozen states. Writing for the 5-4 majority, Justice Anthony Kennedy said the political speech of corporations was protected by the First Amendment. That applied even if the funds corporation executives were spending in political races belonged to stockholders. […] The ruling did not mean corporations could contribute directly to candidates, only that they could make independent expenditures to support a candidate or party. If the money is used in ‘issue’ campaigns, corporate donors do not have to be disclosed.” According to the Washington Post, Roberts and Alito joined Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas in the majority. [UPI, 4/14/13; Washington Post, accessed 6/5/13]

Roberts And Alito Both Sided Against Lily Ledbetter In Equal Pay Case. According to the New York Times, “The Supreme Court on Tuesday made it harder for many workers to sue their employers for discrimination in pay, insisting in a 5-to-4 decision on a tight time frame to file such cases. The dissenters said the ruling ignored workplace realities. The decision came in a case involving a supervisor at a Goodyear Tire plant in Gadsden, Ala., the only woman among 16 men at the same management level, who was paid less than any of her colleagues, including those with less seniority. She learned that fact late in a career of nearly 20 years — too late, according to the Supreme Court’s majority. The court held on Tuesday that employees may not bring suit under the principal federal anti-discrimination law unless they have filed a formal complaint with a federal agency within 180 days after their pay was set. The timeline applies, according to the decision, even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day.” According to the Washington Post, Roberts and Alito joined Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas in the majority. [New York Times, 5/30/07; Washington Post, accessed 6/5/13]

NYT: Alito Confirmation Only Recent Replacement To Alter Ideological Makeup Of Supreme Court. According to the New York Times, “And for all the public debate about the confirmation of Elena Kagan or the addition last year of Justice Sonia Sotomayor, there is no reason to think they will make a difference in the court’s ideological balance. Indeed, the data show that only one recent replacement altered its direction, that of Justice Samuel A. Alito Jr. for Justice Sandra Day O’Connor in 2006, pulling the court to the right. […] Chief Justice Rehnquist, a conservative, was replaced by a conservative. Justices Souter and Stevens, both liberals, have been or are likely to be succeeded by liberals.” [New York Times, 7/24/10]

Alito, Who Replaced Relatively Liberal O’Connor, Is Third-Most Conservative Justice Since 1937. According to the New York Times, “The point is not that Justice Alito has turned out to be exceptionally conservative, though he has: he is the third-most conservative justice to serve on the court since 1937, behind only Justice Thomas and Chief Justice Rehnquist. It is that he replaced the more liberal justice who was at the ideological center of the court.” [New York Times, 7/24/10]

NYT: Alito “Thrust Justice Kennedy To The Court’s Center And Has Reshaped The Future Of American Law.” According to the New York Times, “Though Chief Justice Roberts gets all the attention, Justice Alito may thus be the lasting triumph of the administration of President George W. Bush. He thrust Justice Kennedy to the court’s center and has reshaped the future of American law.” [New York Times, 7/24/10]

Alito’s Replacement Of O’Connor Yielded More Conservative Outcomes On Abortion And Race Cases. According to the New York Times, “The departure of Justice O’Connor very likely affected the outcomes in two other contentious areas: abortion and race. In 2000, the court struck down a Nebraska law banning an abortion procedure by a vote of 5 to 4, with Justice O’Connor in the majority. Seven years later, the court upheld a similar federal law, the Partial-Birth Abortion Act, by the same vote. […] In 2003, Justice O’Connor wrote the majority opinion in a 5-to-4 decision allowing public universities to take account of race in admissions decisions. And a month before her retirement in 2006, the court refused to hear a case challenging the use of race to achieve integration in public schools. Almost as soon as she left, the court reversed course. A 2007 decision limited the use of race for such a purpose, also on a 5-to-4 vote.” [New York Times, 7/24/10]

Roberts-Led Court Struck Down Key Component Of Voting Rights Act. According to Mother Jones, “The Supreme Court gutted a key provision of the 1965 Voting Rights Act on Tuesday, ruling that the United States had sufficiently moved beyond its Jim Crow past and has rendered the law’s formulas unconstitutional. Writing for the conservative 5-4 majority, Chief Justice John Roberts, who has a long history of trying to undermine this law, struck down Section 4 of the act. This part of the law determines which states and counties must adhere to strict guidelines governing any change to their voting laws. (The point of this provision is to prevent regions that have a history of fiddling with voting laws to discriminate against certain groups from trying such stunts again.)” [Mother Jones, 6/25/13]

Library Omits Bush’s Most Controversial Nominees

Harriet Miers – Supreme Court

Miers’ nomination was withdrawn.

Time: Miers Nomination “Drew Charges Of Cronyism From The Very Beginning.” According to Time, “George W. Bush’s nomination of White House counsel Harriet Miers drew charges of cronyism from the very beginning. Nearly as soon as her name was put forward in 2005, Miers’ lack of judicial experience, not to mention her lack of expressed views on constitutional law, made her a target of fierce criticism. Right-wing activists didn’t feel she was conservative enough, and they let Bush know. Opponents, dismayed that the President had passed over a host of more qualified jurists in favor of his personal lawyer from his days as Texas governor, let the press know. Just 25 days after Miers’ nomination, he withdrew her name. The seat eventually went to the far more experienced and conservative Samuel Alito.” [Time, accessed 5/23/13]

Miers Came Under Fire Because Of Her Friendship With Bush And Her Inexperience. According to USA Today, “President Bush’s nomination of his White House counsel, Harriet Miers, suggests that, in the end, he values her gender and her loyalty. But by choosing a friend, Bush ensures that his nominee will face questions about her credentials and whether she benefited from cronyism. Unlike the nine other Supreme Court nominees since 1975, Miers has never been a judge. The late Chief Justice William Rehnquist was the last non-judge to ascend to the court when he was appointed in 1972, but he was an assistant U.S. attorney general with a conservative track record. Miers’ selection recalled an era in which presidents often turned to personal friends to fill vacancies on the Supreme Court.” [USA Today, 10/3/05]

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Conservative Scholar: Miers’ Qualifications “Are All The Fruits Of Her Continuing Relationship With The President.” According to NPR, “Moreover, some critics complained that Miers’ nomination had less to do with her qualifications than with her close relationship with Mr. Bush. ‘If one omits the jobs that were given to her by President Bush … all you have left is a corporate attorney who has shown an ability for administration,’ Ronald J. Pestritto, of the conservative think tank, The Claremont Institute, recently noted in one of a slew of negative web postings on the Miers nomination. ‘The substantial weight of the evidence of her capacity to be a justice — that is, the key government positions she has held — are all the fruits of her continuing relationship with the president. If this doesn’t raise serious questions about cronyism, I’m not sure what does.’” [NPR, 10/27/05]

Both Parties’ Judiciary Committee Leaders Called Miers’ Questionnaire Answers “Insulting” And “Incomplete.” According to NPR, “Meanwhile, Senators Arlen Spector and Patrick Leahy, the Republican and Democratic leaders of the Senate Judiciary Committee, voiced their disappointment in Miers’ 56-page response to questions about her judicial experience and philosophy. Calling her answers ‘incomplete’ and ‘insulting,’ they demanded that she re-do the questionnaire, and also asked for additional documents from her tenure at the White House.” [NPR, 10/27/05]

Janice Rogers Brown – Court of Appeals, D.C. Circuit

Brown was confirmed.

Brown Compared Liberalism To Slavery. According to the New York Times, “Janice Rogers Brown, the African-American daughter of Alabama sharecroppers who was confirmed Wednesday to the federal appeals court here, often invokes slavery in describing what she sees as the perils of liberalism. ‘In the heyday of liberal democracy, all roads lead to slavery,’ she has warned in speeches. Society and the courts have turned away from the founders’ emphasis on personal responsibility, she has argued, toward a culture of government regulation and dependency that threatens fundamental freedoms. ‘We no longer find slavery abhorrent,’ she told the conservative Federalist Society a few years ago. ‘We embrace it.’ She explained in another speech, ‘If we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a kleptocracy – a license to steal, a warrant for oppression.’” [New York Times, 6/9/05]

Brown Has Argued That Judges Should Look To Higher Authority Than The Law In Decisions. According to the New York Times, “She has often said that she has been guided through the challenges of her life and work by her deep Christian faith, and she has often argued that judges should look to higher authorities than precedent or manmade laws in making decisions.” [New York Times, 6/9/05]

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Brown: New Deal Was “The Triumph Of Our Socialist Revolution.” According to the New York Times, “This week, some Senate Democrats have even singled her out as the most objectionable of President Bush’s more than 200 judicial nominees, citing her criticism of affirmative action and abortion rights but most of all her sweeping denunciations of New Deal legal precedents that enabled many federal regulations and social programs – developments she has called ‘the triumph of our socialist revolution.’” [New York Times, 6/9/05]

Brown Is A Conservative Opponent Of Affirmative Action. According to USA Today, “[T]he prominent U.S. Court of Appeals for the District of Columbia Circuit, regarded as a steppingstone to the Supreme Court. Janice Rogers Brown, 58; Brett Kavanaugh, 43; Thomas Griffith, 53; and, before he was elevated, Roberts. Perhaps the most controversial was Brown, who as a judge on the California Supreme Court earned a reputation as a bold advocate of property rights and an opponent of affirmative action.” [USA Today, 3/14/08]

Priscilla Owen – Court of Appeals, Fifth Circuit

Owen was confirmed.

Owen Was Voted Down By Democratic Senate Judiciary Committee, Then Re-Nominated After GOP Took Control. According to CBS News, “President Bush has renominated two controversial choices for appellate court judgeships – Charles Pickering of Mississippi and Priscilla Owen of Texas – both of whom who were rejected by the Democrat-controlled Senate last year. Pickering and Owen’s nominations were returned to the Senate on Tuesday along with 28 other judicial nominations who were not considered by the full Senate last year. Pickering and Owen, however, were the only two who were specifically rejected last year by the Democrat-controlled Senate Judiciary Committee.” [CBS News, 5/7/09]

Houston Chronicle Editorial: Owen “Shows Less Interest In Impartially Interpreting The Law Than In Pushing An Agenda.” According to a Houston Chronicle editorial, “Earlier this month, 44 U.S. senators refused to go along on a vote that would have ended a filibuster on the nomination of Priscilla Owen to the 5th U.S. Circuit Court of Appeals. Good. Owen’s judicial record shows less interest in impartially interpreting the law than in pushing an agenda. The problem is not that Owen is ‘too conservative,’ as some of her critics complain, but that she too often contorts rulings to conform to her particular conservative outlook. It’s saying something that Owen is a regular dissenter on a Texas Supreme Court made up mostly of other conservative Republicans.” [Houston Chronicle, 5/12/03]

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Karl Rove Elevated Owen To Texas Supreme Court. According to the New York Times, “Justice Owen was, by all accounts, a respected but little-known lawyer in Houston in 1994 when she was first elected to the State Supreme Court with Mr. Rove’s support and tutelage. Her experience up to then largely involved obscure legal cases involving pipelines and federal energy regulations. At the time, Mr. Rove was helping to make over the Texas Supreme Court from a bench populated by Democrats widely viewed as favorable to the plaintiffs’ bar – the lawyers who sue companies – to the business-friendly Republican stronghold it is today.” [New York Times, 5/16/05]

While Serving With Owens On Texas Supreme Court, Bush Counsel Alberto Gonzales Repeatedy Accused Owens Of Judicial Activism. According to Salon, “As the liberal advocacy group People for the American Way has documented, in the span of less than two years then-Justice Gonzales singled out Owen’s dissents 11 times, accusing her of ignoring the legislative intent of laws and instead struggling to manufacture an outcome. […] In several decisions concerning Texas’ Parental Notification Act, the Gonzales-led majority rejected the views of Owen and the other dissenters who regularly tried to make it harder for pregnant girls to obtain what’s known in Texas as a ‘judicial bypass,’ meaning they didn’t have to inform their parents before having an abortion. The majority scolded Owen, insisting that judges ‘cannot ignore the statute or the record,’ or try to create new law. In a harmful-product case, Gonzales wrote that Owen’s dissent (in favor of the manufacturer) would have required the court to act improperly and ‘judicially amend’ the law. In a wrongful-termination case, the Gonzales majority, which found in favor of a fired employee, criticized Owen’s dissent, saying it ‘defies the Legislature’s clear and express limits on our jurisdiction,’ adding, ‘We cannot simply ignore the legislative limits on our jurisdiction.’ When not specifically accusing Owen of judicial activism, Gonzales and other members of the majority were dissing her legal thinking, waving off one dissent as ‘nothing more than inflammatory rhetoric and thus merits no response.’ But it was Gonzales’ now infamous putdown accusing Owen of ‘an unconscionable act of judicial activism’ that has hung like an anchor around the judge’s neck. The reprimand came in yet another parental notification case, a string of which dominated Texas Supreme Court headlines during its 2000 session. Once again, Owen in her dissent felt the girl in the case needed to do more to obtain a judicial bypass, saying she didn’t think the minor had been adequately informed about the alternatives to abortion.” [Salon, 5/3/05]

Nearly Half Of Houston Bar Association Members Rated Owen’s Work In Texas “Poor.” According to Salon, “The American Bar Association rated Owen well qualified, but she received much lower marks from members of her local Houston Bar Association. According to its 2003 survey of Texas jurists, the most recent poll available from the association, just 43 percent labeled her work ‘outstanding,’ and 47 percent thought her performance on the bench was ‘poor.’ Hers was the highest ‘poor’ rating of any of the justices on the all-Republican Texas Supreme Court. Interestingly, Owen received her lowest marks in response to the question asking whether she was ‘impartial and open-minded with respect to determining the legal issues.’” [Salon, 5/3/05]

Owen Is An Abortion Rights Opponent “No Matter What The Law Says.” According to the Chicago Tribune, “Most controversial has been Owen’s position on abortion. Opponents say she votes without exception against abortion rights, no matter what the law says on the subject, and they note her forceful opposition to allowing minors to get abortions without parental notification.” [Chicago Tribune, 7/24/02]

Owen Wanted To Require Minors Seeking Parental Notification Exemptions To Prove They Understand Religious Objections To Abortion. According to the San Francisco Chronicle, “The most noted example was a series of rulings in 2000 on the state’s parental notification law for minors’ abortions. That law allows a pregnant girl under 18 to avoid notifying her parents if she persuades a judge she is mature and sufficiently well-informed about the consequences of abortions, an exemption Owen has voted almost invariably to deny. In the first such case, she said a young woman seeking an abortion should have to show that she understands religious objections, a requirement upheld in other states but one that is not part of the Texas statute.” [San Francisco Chronicle, 5/18/05]

Owen Took Enron Money And Then Authored An Opinion Lowering The Company’s Taxes. According to the Center for American Progress, “Priscilla Owen…took thousands of dollars worth of campaign contributions from Enron and then wrote a key opinion reducing Enron’s taxes by $15 million when she sat on the Texas Supreme Court.” [Center for American Progress, 12/15/10]

On Texas Supreme Court, Owen Sought Special Benefits For Campaign Donor. According to Mother Jones, “Owen consistently distinguished herself as one of the conservative court’s most strident conservatives. In one decision, Owen argued unsuccessfully in support of a water-quality exemption tailored for an Austin land developer who had given $2,500 to her campaign. The court majority dismissed her contention as ‘nothing more than inflammatory rhetoric.’” [Mother Jones, November-December 2003]

Owen Often Argued For Decisions Benefitting Business. According to the San Francisco Chronicle, “Her current foes include advocates for civil rights, consumers and labor, who accuse Owen of steadfastly promoting the positions of the business groups that helped put her in office. When the conservative court issues one of its infrequent rulings against a business, opponents say, Owen generally joins the dissenters. One ruling, in 1998, upheld damages for a man who was severely injured by a light truck tire that exploded while he was inflating it. The dissent Owen signed said the man had ignored the manufacturer’s warnings; the majority said the warnings did not excuse the tire’s unsafe design. She also dissented from a 1998 ruling holding a vacuum cleaner company liable for a door-to-door salesman’s rape of a customer and from a 2000 decision striking down a state law that exempted a landowner from local clean-water requirements.” [San Francisco Chronicle, 5/18/05]

Charles Pickering – Court of Appeals, Fifth Circuit

Although he served on the appeals court for a year as a recess appointment, Pickering’s Senate confirmation was blocked by filibuster and his nomination was withdrawn.

Bush Installed Pickering On Federal Appeals Bench Via Recess Appointment. According to the Los Angeles Times, “President Bush unilaterally elevated controversial Mississippi Judge Charles W. Pickering Sr. to the federal appeals court on Friday, opening a new front in the administration’s nearly three-year battle with Congress over judicial nominees. Bypassing the confirmation process that Senate Democrats have used to block Pickering and some other Bush nominees, the president installed Pickering by a recess appointment. The constitutional device — unusual but not unheard of — gives the judge a year to serve until a new Congress convenes in January 2005.” [Los Angeles Times, 1/17/04]

NAACP Opposed Pickering’s Confirmation, Saying His Rulings “Raise Suspicious” About His Ability To “Administer Fairness AS He Interprets The Federal Law.” According to the Los Angeles Times, “The National Assn. for the Advancement of Colored People asked Congress to support its opposition to President Bush’s nomination of a Mississippi judge. […] The group has said it opposes Senate confirmation of Judge Charles Pickering of Mississippi, nominated to serve on the U.S. 5th Circuit Court of Appeals in New Orleans. ‘Judge Pickering . . . in most of his rulings, continues to raise suspicions about whether or not he will be able to interpret . . . and administer fairness as he interprets the federal law,’ Mfume said.” [Los Angeles Times, 2/17/02]

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Citing His Record On Civil Rights And Women’s Rights, The Congressional Black Caucus “Adamantly” Opposed Pickering. According to Gannett News Service, “In a year marked with rancorous partisan squabbling over who should fill more than 100 federal judgeships, Judge Charles Pickering’s candidacy for a seat on the 5th U.S. Circuit Court of Appeals has become the most controversial nomination. The National Association for the Advancement of Colored People’s Legal Defense Fund and People for the American Way have questioned Pickering’s record. Last week, the Congressional Black Caucus said it ‘adamantly opposes the nomination’ in a letter to Senate Judicial Committee Chairman Patrick Leahy, D-Vt. […] [T]he black caucus’ letter said the conservative judge ‘has a quarter-century record of hostility to women’s rights, including a woman’s right to choose.’ It accused Pickering of opposing the Equal Rights Amendment and helping draft a Republican convention platform that protested the Supreme Court’s decision in Roe vs. Wade, which legalized early term abortions. Citing a law journal article about Mississippi’s old antimiscegenation law that Pickering wrote 43 years ago, the black caucus said the judge’s ‘career and record on civil rights is a grave concern.’ The law article, published in a 1959 Mississippi Law Journal while Pickering was on its staff as an Ole Miss student, discussed the case of a black woman convicted of breaking a Mississippi law against interracial marriages by marrying a white man.” [Gannett News Service via Nexis, 10/24/01]

As A Law Student, Pickering Wrote An Article Advising Mississippi On How To Change Anti-Miscegenation Statute To Make It Enforceable. According to People for the American Way, “1958, the Mississippi Supreme Court held that a problem in the language of the state statute criminally penalizing interracial marriage made the criminal law unenforceable. The court therefore reversed the conviction of an African American woman for ‘cohabiting with’ a white man. In 1959, while he was a law student at the University of Mississippi, Pickering wrote an article concerning the result of that state Supreme Court case, which had rendered unenforceable the state’s law penalizing interracial marriage. In his article, Pickering advised the state legislature as to how it could cure the problem in the statute so as to render the law enforceable. The article specifically stated that if the law were to ‘serve the purpose that the legislature undoubtedly intended it to serve, the section should be amended.’ The very next year, the state legislature amended the statute in accordance with Pickering’s advice. In his article, Pickering expressed no moral outrage over laws prohibiting and criminalizing interracial marriage, nor did he condemn them. Indeed, even though the California Supreme Court ten years earlier had held its state laws prohibiting interracial marriage to be unconstitutional, Pickering pointed out in his article that there had been what he called a ‘vigorous dissent’ in that case. While this article was written many years ago, Pickering has not taken the opportunity presented to him at either of his confirmation hearings to repudiate it.” [People for the American Way, 1/24/02, internal citations removed]

In Unpublished Opinion, Pickering Argued That Anti-Discrimination Laws Make People Think Anything Bad That Happens Is A Result Of Discrimination. According to People for the American Way, “Unpublished opinions by Pickering in a number of discrimination cases contain much more severe criticisms of civil rights plaintiffs and the use of civil rights statutes. In one case in which he rejected a race discrimination claim, Pickering harshly complained about ‘the side effects resulting from anti-discrimination laws,’ which he suggested cause people ‘covered by such laws’ to ‘spontaneously react that discrimination caused’ any adverse action against them. ” [People for the American Way, 1/24/02, internal citations removed]

Pickering Opposed Creation Of Majority-Black Voting Districts. According to People for the American Way, “Judge Pickering has also criticized or sought to limit important remedies provided by the Voting Rights Act. In order to redress serious problems of discrimination against African American voters in some cases, the courts (including the Supreme Court and the Fifth Circuit) have clearly recognized the propriety and importance of creating majority-black districts as a remedy under appropriate circumstances. Judge Pickering, however, has severely criticized this significant form of discrimination relief. In one opinion, he called it ‘affirmative segregation.’ In another opinion in the same case, he claimed that such districts produce ‘polarization’ and complained that candidates elected in such districts ‘may well feel little need to accommodate the views of their minority white constituents.’” [People for the American Way, 1/24/02, internal citations removed]

Pickering Halted Proceedings On Case Alleging Power Company’s Racial Discrimination. According to People for the American Way, “Acting on his own motion, Pickering halted a race discrimination lawsuit filed by a local chapter of the NAACP against Dixie Electric Power Association in December 1993. In what was described as a potentially precedent-setting case, the NAACP charged that Dixie had discriminated against African American employees, and also against African American customers in terms of rate-setting and termination-of-service practices. According to a press report, immediately after the suit was filed, Pickering suspended all proceedings, issued a gag order prohibiting the parties from discussing the case publicly, and directed the two sides to explore settlement in a three month period. Apparently, Pickering also suspended the requirement that Dixie file an answer stating its position on the claims. In January 1994, officials of the NAACP chapter ‘were quoted in local press reports saying they believed the case was very important and could establish a precedent for similar cases against other rural cooperatives.’ When Pickering learned of these comments, he reportedly issued another gag order prohibiting the parties from commenting on the case. Pickering’s handling of the case was one of the factors specifically mentioned by the state NAACP in opposing his nomination.” [People for the American Way, 1/24/02, internal citations removed]

Pickering Gave Reduced Sentence To A Man Convicted Of Cross Burning. According to the Los Angeles Times, “But the Democrats revealed that as a federal trial judge in 1994, Pickering secretly pressed prosecutors to go along with an unusually lenient sentence for a man convicted of burning a cross outside the home of mixed-race couple. He and two other white men also fired a bullet at the house, narrowly missing the couple’s baby. Pickering called the incident a ‘drunken prank’ and refused to impose a seven-year prison term set by federal sentencing guidelines. He ultimately gave the man a 27-month prison sentence.” [Los Angeles Times, 12/23/02]

PFAW: Pickering Has Shown Disdain For Judicial Remedies For Uneven Voting Districts. According to People for the American Way, “[I]n several cases Judge Pickering has discussed the fundamental ‘one-person one-vote’ principle recognized by the Supreme Court under the Fourteenth Amendment. This principle, which calls for election districts to be nearly equal in population in order to protect the equality of all voters in our democracy, has been called one of the most important guarantees of equality in our Constitution.…In a lengthy criticism of the principle in one case, however, Judge Pickering called it ‘obtrusive’ and something that legislatures have reluctantly learned they ‘must live with.’ In that case, the defendants conceded that a deviation of more than 25% from equality was improper, in accordance with Supreme Court rulings that deviations of more than 16.4% are presumptively unconstitutional. In dicta, however, Pickering suggested that these deviations were ‘relatively minor’ and ‘de minimis’ and that he might well have held that they ‘would not violate the Constitution’ had that argument been raised. Pickering also declined to order special elections as a remedy in the case, even though he acknowledged that this remedy had been ordered in previous one-person, one-vote cases by the Fifth Circuit.” [People for the American Way, 1/24/02, internal citations removed]

Pickering Chaired GOP Platform Committee That Established First Anti-Roe V. Wade Plank. According to People for the American Way, “Pickering has long been a staunch opponent of a woman’s right to reproductive freedom. In 1976, he was chair of the Human Rights and Responsibilities Subcommittee of the National Republican Party Platform Committee that approved a plank for the party platform protesting Roe ‘as an intrusion into the family structure’ and supporting the efforts of those calling for a ‘right to life’ amendment to the Constitution. Pickering supported the Subcommittee’s plank, and in fact publicly announced before leaving Mississippi for the Republican Convention that he ‘would push for a platform with a statement against ‘abortion on call.’’Although the Republican Party today is well known for its opposition to reproductive choice in its platform, the 1976 Republican Party Platform was the first to oppose Roe v. Wade.” [People for the American Way, 1/24/02]

Michael Wallace – Court of Appeals, Fifth Circuit

Wallace’s nomination was withdrawn.

Wallace Unanimously Given Rare “Not Qualified” Rating By ABA. According to the Associated Press, “The American Bar Association rated one of President Bush’s judicial nominees ‘not qualified’ Wednesday, prompting a call from a liberal group for the president to withdraw the Mississippi lawyer’s nomination. A panel of the nation’s largest lawyers group voted unanimously to give its lowest rating to Michael Wallace, Bush’s nominee for the 5th U.S. Circuit Court of Appeals. […] An unanimous ‘not qualified’ rating is rare from the ABA, which has graded judicial candidates since the 1950s on three factors: integrity, professional competence and judicial temperament.” [Associated Press, 5/11/06]

ABA Investigator: Legal Professionals Believed Wallace Lacked “Freedom From Bias.” According to NPR, American Bar Association investigator Kim Askew said, “Judges and lawyers who had interacted with Mr. Wallace concluded that he lacked the freedom from bias necessary to be an effective judge. They believed he would not follow the law or would ignore it if he disagreed with it.” [NPR, 9/27/06]

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ABA Investigator: Legal Professionals Repeatedly Warned That Wallace “Had Not Shown A Commitment To Equal Justice.” According to American Bar Association investigator Kim Askew’s testimony before the Senate Judiciary Committee, “One of the negative comments expressed over and over, and often with great emotion and concern for the system, was that Mr. Wallace had not shown a commitment to equal justice under the law. Lawyers and judges stated that Mr. Wallace did not understand or care about issues central to the lives of the poor, minorities, the marginalized, the have-nots, and those who do not share his view of the world. These concerns were most often discussed in the context of Voting Rights Act cases and other issues involving constitutional rights.” [Kim Askew Testimony, 7/19/06]

Wallace Is A Federalist Society Member And Worked For Republican Establishment. According to the Wall Street Journal, “Wallace had served as counsel to Senator Trent Lott during President Clinton’s 1999 impeachment trial. A Federalist Society member and lawyer for the Mississippi Republican Party, he received his undergraduate degree from Harvard and JD from the University of Virginia.” [Wall Street Journal, 5/11/06]

NAACP Representative: Wallace Has “Incredible Hostility To Civil Rights.” According to the Wall Street Journal, “Civil rights leaders decried his nomination back in January. Derrick Johnson of the NAACP told the Clarion-Ledger: Just one day after President Bush pays tribute to Coretta Scott King, he nominates a person with incredible hostility to civil rights for the [Fifth] Circuit, which has the highest number of African-American and Latino residents in the country.” [Wall Street Journal, 5/11/06]

Wallace Believed Bob Jones University Should Get A Tax Break Despite Racial Discrimination. According to People for the American Way, “Mr. Wallace has testified that he ‘personally’ believed that the Reagan Justice Department ‘was correct’ in arguing that Bob Jones University should receive tax-exempt status despite its racially discriminatory policies, an argument that had been rejected by an 8-1 vote of the Supreme Court.” [People for the American Way, 9/25/06]