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Pleading the Fourth
President Obama has started to appoint new judges to the federal courts, especially the appellate courts which decide more than 30,000 cases a year. What kind of jurists will the president pick? In particular, how will he fill openings on the appellate courts in Atlanta and Richmond? His remarks, so far, have been opaque.
Over eight years, the Bush/Cheney legal viewpoint left a heavy footprint on the hundreds of district and appeals courts. Bush’s appointments cemented a philosophy of exclusion and a system in which justice served a narrower band of society than ever before. Thus, progressives are hoping Obama’s appointments will reverse the neo-con influence and reshape the legal landscape.
So, who will Obama give us? In a May 2009 CNN interview, Obama offered only this murky, liberal-sounding bite: “What I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can’t have access to political power and as a consequence can’t protect themselves from being . . . dealt with sometimes unfairly.”
The president might as well be hiring a social worker or a nanny. From a president who is a former professor of constitutional law and Harvard Law Review editor, this description falls well short of incisive. Those who hoped to hear the words “brilliant” or “coherent” or “progressive” to describe a new federal judiciary saw their hopes reduced to “kind-hearted guys and gals who are Democrats (or Democrat-ISH).”
Of concern, here, is one Southern bench in particular, the Richmond-based U.S. 4th Circuit Court of Appeals. It has been a conservative bastion and an influential voice on national security cases. The 4th Circuit covers Virginia, Maryland, West Virginia and the Carolinas. There were four vacancies at the start of 2009. Three weeks ago, Obama nominated, and the Senate confirmed, Andre Maurice Davis to that bench. Davis, previously nominated by President Bill Clinton in an effort to seat more Black jurists, was not confirmed by the Senate during the Clinton years.
Two more judges were nominated in November: Barbara Milano Keenan, of the Virginia Supreme Court, and North Carolina Judge Albert Diaz. Filling these vacancies will lead to a clear Democratic majority, if Obama’s nominees are not blocked.
There are reasons to watch as Obama makes appointments in Richmond. The Bush/Cheney 4th Circuit Court issued highly conservative rulings, including one that struck down a law allowing rape victims to sue their attackers. That ruling was a fairly radical departure from the traditional values and culture of the South which historically protected women. How very conservative the judges had to be for a Southern Circuit to rule against rape victims in a case where the federal government really had no compelling interest.
As it is situated in an agricultural region, this court also sees a fair number of labor cases involving migrant workers and complaints of discrimination. Its conservative rulings color the outcomes of other labor cases elsewhere in the nation. For example, in Luis Reyes-Gaona v. North Carolina Growers Association, the court ruled that age discrimination laws do not protect migrant workers who apply from outside the country for the federal H2A worker program – a legal visa allowing farm workers into the country. Other courts at other times have interpreted the Age Discrimination in Employment Act in ways at odds with the Act’s intent. But the 4th Circuit’s ruling placed a roadblock between jobs and over-40 aged foreign workers who want to come into the country legally. At the same time, this appellate court often hears immigration cases that involve deporting illegal aliens back to their countries. The court’s rulings seem to be at cross-purposes with any cohesive view on immigration. The only commonality among the decisions is a punitive tone towards immigrants.
There are enough Senate Republicans to filibuster judicial nominees, and Alabama’s Sen. Jeff Sessions has shown no indication that he will let any progressive nominee sail through confirmation hearings. (In his view, this is the GOP’s quid pro quo; Democrats successfully blocked some of President Bush’s 4th Circuit and other appellate court nominees.) Will this force Obama to appoint centrist or semi-conservative jurists? Again, the president has not signaled clearly what breed of judges he will nominate.
(Normally, I would not recommend Wikipedia as an authoritative source, but it has a good list of Obama’s nominees to the federal courts, up until last week.) http://en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Barack_Obama
Although Republican control may persist in many appellate courts for a while, some recent news articles quote legal pundits saying that, by the end of Obama’s term, he and the Democratic Congress will have flipped the 56-percent majority Republican courts. These newcomers may or may not rule more favorably toward women, environmentalists and labor unions than the old guard. And, after the 8-year Bush drought, we probably should be thankful for small gifts.
I’d be more thankful for assurances.
Read Dennis McCarthy’s update on former Tennessee Supreme Court Justice Penny White, Disorder in the Courts.