Senate Outcome Could Alter Future of Federal Courts

Pro-choice groups remain concerned that if the U.S. Senate becomes an anti-choice body, new appointments to the federal bench could be anti-choice as well. One controversial federal court could be dramatically altered in the next two years.

Barbara Boxer

SAN FRANCISCO (WOMENSENEWS)-When the U.S. Senate Judiciary Committee rejected Priscilla Owen as a nominee for the 5th Circuit Court of Appeals in September by a vote of 10 to 9, the razor-thin margin suggested that Tuesday's mid-term elections could have far-reaching implications on the laws of the land.

Owen, a Texas Supreme Court judge, had denied minors judicial bypass of parental-notification laws in all but one case and had supported further restricting abortion laws.

“Ideologues are not going to make it,” Democratic committee Chairman Patrick Leahy of Vermont said at Owen's hearing.

President Bush is strongly anti-choice. And his anti-choice picks for the nation's federal courts will likely face fewer obstacles if anti-choice Republicans gain control of the Senate. Pro-choice Democrats currently hold a one-seat majority and face close competition in a handful of key races that, just a day before the election, are too close to call.

When asked recently whether President Bush would consider nominating a pro-choice conservative to the bench, Alberto Gonzales, counsel to President Bush and active in the judicial screening process, said: “We don't ask that question.” He added that the president's judicial nominees would “enforce the law.”

Pro-Choice Advocates Worried About 9th Circuit Court

The impact of an anti-abortion Republican-controlled Senate would be felt in all courts, but perhaps in none more than the nation's largest and most controversial court of appeals-the 9th U.S. Circuit in San Francisco. The 9th Circuit is widely viewed as bringing issues concerning consumer protection, the environment, and women's rights to the forefront of national debate. In a landmark case, the court ruled in 2000 that a United Airlines policy imposing employee weight standards unfairly targeted women employees and imposed a burden on them that had nothing to do with their work.

President Bush has the opportunity to fill five spots on the 9th Circuit, which covers nine states. One Bush nominee, Republican activist Richard Clifton of Honolulu, was confirmed in May without opposition. But Democrats are blocking another nominee, Carolyn B. Kuhl.

A Los Angeles Superior Court Judge, Kuhl co-authored a brief filed with the U.S. Supreme Court in 1986 when she was a deputy district attorney supporting a reversal of Roe v. Wade, which legalized abortion. Reproductive rights groups such as NARAL and the Center for Reproductive Law and Policy strongly oppose Kuhl's nomination. Her confirmation chances in a pro-choice Democratic Senate are slim to none.

Kuhl's nomination could be forever blocked by Democratic Sen. Barbara Boxer of California. Boxer has not signed a “blue slip,” meaning that the home-state senator of the court where the nominee will be appointed has not returned the blue piece of paper indicating approval. Some legal experts are now criticizing this “blue slip” rule, and observers say it is possible that rule would be revoked under an anti-choice Senate.

“Such tactics skirt the edges of constitutional legitimacy,” Chapman University law professor John C. Eastman wrote in the Los Angeles Daily Journal. “The founders viewed the confirmation power more as a check on possible favoritism by the president than a means to thwart the president's policy preferences.”

Arthur Hellman, a law professor at the University of Pittsburgh and former director of the central legal staff of the 9th Circuit, says how Kuhl will rule as a judge cannot be based on her actions as a lawyer.

“Any good lawyer recognizes the role of a judge is much different,” Hellman says. “Lawyers are expected to take provocative stances to make their mark, while the role of the judge is to uphold the law.”

But abortion rights advocates say that the stakes are too high to believe that federal judges will not rule based on personal politics.

“It's naive and ahistorical to think that judges will not rule based on ideology,” says Betsy Cavendish, legal director of NARAL. “Many cases are not ideological, but in critical cases, ideology does play a role.”

Cavendish cites a recent decision in the 7th U.S. Circuit Court of Appeals in Chicago upholding an Indiana law requiring face-to-face counseling 18 hours before a woman can have an abortion. The two more conservative judges ruled in favor of the law.

“State legislatures are innovative in the way they restrict choice,” Cavendish says. “We need the courts to challenge state actions.”

The 9th Circuit gained national attention last summer by declaring the Pledge of Allegiance unconstitutional because it includes the words “under God.” Though written by a judge appointed by Republican president Richard Nixon, the decision cemented the 9th Circuit's reputation as a rogue and liberal court-a reputation many in the Senate would like to change. Ever controversial, last Wednesday a three-judge panel of the court ruled unanimously that the Justice Department could not investigate doctors who recommend marijuana to sick patients.

Critics argue that the court has had more decisions reversed by the U.S. Supreme Court than any other appeals court. Most notably, in 1996-1997, the Supreme Court reversed 28 of 29 cases from the 9th Circuit. But Hellman notes that the reversal rate has declined since that year, and that 29 cases is “a tiny, tiny proportion of overall cases heard by the 9th that year.”

Changing Court Balance Is a Slow Process

It would take some time to turn the 9th Circuit into a truly conservative court. Former President Bill Clinton appointed 13 of the 24 judges on the court, which covers California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Alaska and Hawaii. Because a three-judge panel often determines the outcome of cases, observers say that adding five new judges to the court could have an impact on court rulings.

“The Clinton nominees were actually fairly moderate,” says Marcia Kauntz, director of judicial selection process at the Alliance forJustice. “Given the court-packing by former presidents Reagan and Bush Sr., Clinton did not provide an ideological balance to the federal courts. If President Bush is able to get his nominees through the Senate, the court would skew even more conservative.”

Kauntz says that the 6th U.S. Circuit Court of Appeals, covering Michigan, Ohio, Kentucky and Tennessee, would also become more conservative if the Senate approves Bush's nominees because of the six vacancies on that court.

“Given the types of nominees Bush has chosen for the 6th Circuit, it would become more anti-environment and anti-abortion,” Kauntz says.

On Wednesday, President Bush unveiled a plan to speed up the confirmation process, requiring Senate Judiciary Committee hearings within 90 days of receiving a nomination from the president, and a full Senate vote within 180 days. The proposal came as a surprise to senators on both sides of the aisle.

“It's a political tactic to call attention to the nomination issue and mobilizes the right-wing base knowing full well the Senate cannot accept a proposal they had no input in making,” Kauntz says. “From our perspective, Sen. Leahy has moved nominees fairly quickly; 80 nominees have been voted on, which is comparable to previous administrations.”

White House press secretary Ari Fleischer denied that the plan was a political tactic.

Rebecca Vesely is the West Coast bureau chief for Women's Enews.

For more information:

U.S. 9th Circuit Court of Appeals:

Center for Reproductive Law and Policy:

National Abortion and Reproductive Rights Action League: