May 9, 2005

Four Years Later: An Early Look at the Impact of Bush Judges on the American People

Four years ago, President Bush announced his first set of appellate court nominations. Of the eleven nominees in that initial group, eight were confirmed by the Senate.[1] On the four-year anniversary of those initial nominations, it is worth taking a look back at some of the more important opinions authored by that group of eight judges.

If there is one common thread in those opinions, beyond the open hostility to progressive ideas, it is the sustained and aggressive effort to use the power of the judiciary to challenge the authority of other institutions – be it Congress (attempting to overturn statutes), administrative agencies (ignoring administrative rulings by the NLRB), school districts (forcing them to distribute flyers supporting religious groups) and even juries and lower court judges (usurping their fact-finding responsibility.) This aggressiveness is especially noteworthy given President Bush’s oft-stated disregard for “activist judges.”

However, the following opinions represent more than an effort to change legal doctrine – they offer a warning of the radical direction that current and future Bush judicial nominees might take. All the more reason, therefore, for Democrats to closely protect 200 years of constitutional interpretation and Senate history by preserving the right to filibuster extremist judicial nominees.

Congressional Authority Under the Commerce Clause

• Challenging the Endangered Species Act
  Judge John D. Roberts dissented from a decision upholding the Endangered Species Act as a permissible exercise of Congressional authority.

  After the U.S. Fish and Wildlife Service determined that a company’s project was likely to threaten the existence of an endangered species, the company filed suit rather than accept an alternative plan. The district court dismissed the complaint; a panel of the D.C. Circuit unanimously upheld the dismissal and the full Circuit affirmed 7-2. Judge Roberts dissented, despite D.C. Circuit precedent upholding congressional authority under the statute. Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003)

• Challenging Federal Arson Law
  Judge Jeffrey Sutton dissented from a decision upholding the federal arson statute, which applies to the destruction by fire of “any building . . . used in interstate commerce or in any activity affecting interstate or foreign commerce.”

  Judge Sutton argued that the law does not apply to the burning of buildings that are not used for active commercial purposes, thereby significantly narrowing the scope of the statute. Under Judge Sutton’s interpretation, the law would likely exempt prosecution for the arson of most municipal buildings, schools and places of worship. According to Sutton, arson is a local crime and the “National Legislature” had not clearly conveyed its purpose to regulate an area traditionally regulated by the states. United States v. Laton, 352 F.3d 286 (6th Cir. 2003)

• Upholding an Employer’s Power to Withdraw Union Recognition and Solicit Anti-Union Statements from Employees
  

  Judge Dennis Shedd wrote the majority opinion overturning the findings of the National Labor Relations Board (NLRB) that an employer had unlawfully solicited nine of its employees to sign anti-union statements and had unlawfully withdrawn recognition of the union that had represented its employees.

  Even conservative Judge J. Harvie Wilkinson issued a strong dissent, noting that the NLRB has a special expertise in examining an employer’s conduct “in the context of its labor relations setting” and accusing the majority of having “overstepped its bounds as a reviewing court” by reconstructing the dynamics of what had occurred and failing to “accord the appropriate deference to the ALJ who heard the testimony.” National Labor Relations Board v. Transpersonnel, Inc., 349 F.3d 175 (4th Cir. 2003)

• Firing and Refusing to Hire Workers Because of Anti-Union Bias
  

  Judge Michael McConnell dissented from an opinion upholding a NLRB finding that an employer was guilty of illegal unfair labor practices against employees trying to form a union. The employer did not contest the NLRB’s determination that it had “coercively interrogated applicants and employees” about union activities and membership, “created the impression that employees’ union activities were under surveillance, threatened to impose more onerous working conditions if the employees unionized,” and undertaken other anti-union activity. The company disputed, however, that it had improperly fired one employee and refused to hire four other union members because of anti-union bias.

  The majority explained that substantial evidence clearly supported the conclusion that anti-union bias played a role in the decision to fire the employee, including the facts that the employer initially refused to hire him because he was a union organizer and later gave false reasons for his dismissal. The majority also found “plentiful” evidence to support the NLRB’s conclusion that the employer refused to hire four union members due to anti-union bias, including the facts that the employer “interrogated” the applicants about their union status, refused to accept their applications, gave a “false explanation” for this refusal and, in refusing the applications, told them to “file another goddamn [NLRB] complaint.” The majority chided the dissent for trying to “overturn a Board decision just because we might have decided the matter differently.” Judge McConnell’s dissent would have reversed the NLRB’s order and prevented enforcement of its findings. National Labor Relations Board v. Interstate Builders, Inc., 351 F.3d 1020 (10th Cir. 2003)

• The Separation of Church and State
  

  Judge Dennis Shedd cast the deciding vote to force a school district to distribute flyers promoting the Child Evangelism Fellowship (CEF), a “Bible-centered [organization] whose purpose is to evangelize boys and girls with the Gospel of the Lord Jesus Christ,” along with other flyers that the school district gave to students to take home to their parents.

  The majority rejected the school district’s argument that allowing CEF access to the “take home flyer forum” would violate the Establishment clause, noting that “simply issuing a communication involving a religious organization during school hours does not . . . create a perception of endorsement or coercion by government officials.” Child Evangelism Fellowship of Maryland, Inc. v. Montgomery County Public Schools, 373 F.3d 589 (4th Cir. 2004)

• Free Speech
  

  Judge Dennis Shedd dissented from an opinion striking down a South Carolina statute that authorized the issuance of a “Choose Life” specialty license plate but not a license plate with a pro-choice message.

  Judge Shedd argued that the majority “unduly restrict[ed] the ability of elected officials to express the views of their constituents on any issue” and that the only proper avenue for South Carolinians offended by the license plate was to vote against their legislators. Even conservative Judge J. Harvie Wilkinson disagreed, noting that “[t]he fact that Americans have deep differences of opinion on subjects such as these is all the more reason to recognize the unifying force of the First Amendment principle – namely, that none of us has the right to compel assent to our views, but that all of us have the right to express them.” Planned Parenthood of South Carolina, Inc. v. Rose, 373 F.3d 580 (4th Cir. 2004)

• Age and Disability Discrimination
  

  Judge Jeffrey Sutton signed an opinion throwing out a case (by granting summary judgment for defendants) filed by a former employee who claimed he was fired due to age and disability discrimination. In support of his claims, the plaintiff offered the testimony of his supervisor, who claimed that the president of the company stated that he wanted to fire the plaintiff because “[he is] old and I’ve got reports that he has a severe memory loss. . . sounds like early Alzheimer’s disease to me.” The president denied ever making this statement.

  The dissent attacked the majority opinion, arguing that “[i]t is difficult to imagine more explicit direct evidence of age and disability discrimination than the direct statement by a supervisor that he wished to fire an employee, based partially on age, memory loss, and supposed early-onset Alzheimer’s disease . . . It is incomprehensible to me that in the face of this ultra-fact dispute . . . the majority would [grant summary judgment.]” Rosso v. The A.I. Root Company, 97 Fed. Appx. 517 (6th Cir. 2004)

• Sex Discrimination
  

  Judge Deborah Cook authored the majority opinion granting summary judgment against a female professor at Miami University who had charged the school with unlawful sex discrimination in connection with salary disparities. The plaintiff, a full professor, was the lowest paid of the 8 full professors in her department, the second lowest paid was the only other female full professor, and a male full professor who had been hired the same year as the plaintiff was paid $13,000 per year more than the plaintiff.

  The dissent strongly criticized the majority for acting as a fact-finder rather than applying the appropriate summary judgment standard: “the majority appears to have evaluated the evidence and determined that [the plaintiff would not prevail.] She in fact might not prevail at trial, but such an evaluation is inappropriate at the summary judgment stage.” Harrison-Pepper v. Miami University, 2004 U.S. App. LEXIS 13861 (6th Cir. 2004)

• Race Discrimination
  

  Judge Edith Brown Clement dissented from a 2-1 ruling in favor of African American plaintiffs in a civil rights lawsuit brought against life insurance companies that had maintained dual rate and dual plan policies by race, placing African Americans “in policies offering the same benefits as do policies sold to whites, but at a higher premium.”

  The district court denied the plaintiff’s motion to proceed with a class action – which, in all likelihood, would have ended the lawsuit. The Fifth Circuit reversed, with Judge Clement dissenting. Bratcher v. National Standard Life Insurance Co., 365 F.3d 408 (5th Cir. 2004)

• Rejecting the Right of Tortured American POW’s to Sue Iraq for Torture
  

  Judge John D. Roberts argued, in a concurring opinion, that the Emergency Wartime Supplemental Appropriations Act (EWSAA) “deprived the [United States courts] of jurisdiction over suits against Iraq” for damages resulting from torture and other terrorist acts. Judge Roberts’ position on this issue – shared by Bush administration – was rejected by the majority.

  The suit arose when seventeen American soldiers who had been held as POWs and tortured by Iraq during the first Gulf War brought suit under the terrorism exception to the Foreign Sovereign Immunities Act against Iraq, the Iraqi Intelligence Service and Saddam Hussein. After a district court entered judgment for the plaintiffs (the defendants did not appear), the D.C. Circuit held that the district court had jurisdiction over the case – with Judge Roberts disagreeing on this point. Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004)

• Vogler v. Blackmore involved a truck accident where an eighteen-wheel tractor trailer crossed the highway center-line and ran over a car, killing a mother and her daughter. The jury found the truck company liable and awarded $200,000 in damages to the estates of both the mother and daughter.

  Judge Edith Brown Clement reversed on the damages for pain and suffering, reducing the award to the mother’s estate to $30,000 and eliminating entirely the award for the daughter’s pain and suffering. Judge Brown, in justifying the elimination of all damages to the daughter’s estate, argued that there was no specific evidence of her “awareness of the impending collision.” Judge Reavley, in dissent, criticized the majority for violating the “rule of deference to jury verdicts” and noted that “[w]hile no witness could testify to screams of or terror” it is certainly “reasonable to believe that this young girl experienced terrible fright and some pain . . .” Volger v. Blackmore, 352 F.3d 150 (5th Cir. 2003)

[1] Of this initial group, the only nominees who remain pending in the Senate are Priscilla Owen and Terrence Boyle. Owen’s nomination was rejected by the Senate in several unsuccessful cloture votes. Boyle was never considered by the GOP-controlled Judiciary Committee during President Bush’s first term and therefore was not considered on the Senate floor, although he is now again before the Committee. The third nominee who was not confirmed, Miguel Estrada, was not renominated by the President this year.

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