by Glenn Sugameli, Senior Legislative Counsel at Earthjustice

President George W. Bush is demanding that the Senate essentially abandon its constitutionally-mandated “advise-and-consent role” in selecting lifetime judges. Bush’s string of nominees is a blatant attempt to force the Senate into a Hobson’s choice: rubber-stamp his unilateral, extreme choices or create artificial vacancies that rally the President's narrow, right-wing base. Senators must Just Say No and insist they will only confirm nominees who are competent, fair and independent, and who demonstrate that they will uphold and enforce our Constitution and laws.

A Tale of Two Nominees

Major new developments regarding President George W. Bush’s torture policies focus on Jay Bybee and William J. Haynes, two of his nominees for lifetime seats on federal appeals courts.

On February 22, the Department of Justice’s Office of Professional Responsibility revealed that for more than three years it has been investigating whether an Aug. 1, 2002 DOJ legal memorandum improperly declared that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. This memorandum, which was signed by Jay Bybee, as head of DOJ’s Office of Legal Counsel, was withdrawn in 2004.

The Justice Department is “examining whether the legal advice in [this and other] memoranda was consistent with the professional standards that apply to Department of Justice attorneys.” This is too late, however, to inform Senators’ advice-and-consent duty; on March 13, 2003 the Senate voted 74-19 to confirm Bybee’s nomination to the Ninth Circuit Court of Appeals.

In contrast, evidence of the role of Defense Department General Counsel William J. Haynes II emerged in time to raise concerns that led Republican and Democratic Senators to derail his Fourth Circuit nomination in Committee.

returning to private life” following the news that he had echoed the “sentence first - verdict afterwards” demand of the Queen of Hearts’ in Alice in Wonderland . Col. Morris Davis, the former Guantanamo military commission chief prosecutor, revealed that he had suggested to Haynes that, as in the Nuremberg tribunals, some acquittals could result in great credibility. Haynes replied by insisting “we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.”

Curiouser and Curiouser

Maryland’s Senators testified against Claude Allen’s nomination to a Maryland Fourth Circuit seat because he lived in Virginia and had a questionable record. After Allen withdrew, he pled guilty to shoplifting theft.

District Judge James Payne’s Tenth Circuit nomination was withdrawn after reports that his “career on the federal bench was riddled with conflicts of interest: . . . he issued more than 100 orders in at least 18 cases involving corporations in which he had reported stock holdings” despite legal and ethical bans against sitting on such cases.

Charles Pickering’s lifetime Fifth Circuit nomination was blocked in part because, as a District Judge, he unethically solicited attorneys with cases pending before him to send him letters supporting his elevation to the appeals court.

Fifth Circuit nominee Michael B. Wallace withdrew after he received the first unanimous American Bar Association "Not Qualified" rating for an appellate nominee in 24 years.

When failed Ninth Circuit nominee William G. Myers was the Interior Department’s top lawyer, his pro-industry refusals to enforce laws that protect the environment and tribal rights were rejected by federal and state courts and by his own Department. He was the only judicial nominee ever opposed by the National Wildlife Federation and by the National Congress of American Indians, which represents more than 250 tribal governments.

Bush is unnecessarily antagonizing home-state Senators from six states by refusing to discuss appellate nominees and nominating those he knows they oppose. For example, Senators John Warner (R-VA) and Jim Webb (D-VA) interviewed many candidates for two 4^th Circuit vacancies and jointly recommended a Bush district court judge and four others. Bush ensured a continuing vacancy by nominating E. Duncan Getchell, whom they had interviewed and rejected Getchell withdrew after he was named in $7.5 million defamation suit by another lawyer, who alleged that Getchell, so as not to "doom his judicial aspirations," shifted blame for the Virginia Supreme Court’s dismissal of an appeal because trial transcripts were not filed on time.

President Bush’s controversial nominees tend to have extremely restrictive views on the same vital constitutional issues. These include how much Congress can allow citizens to challenge government decisions in court and the scope of the Constitution’s Commerce Clause, which is the source of congressional authority to protect workers, consumers, civil rights, and the environment.

Controversies regarding two pending Fourth Circuit nominees raise other issues.

Robert Conrad Jr. denounced Sister Helen Prejean as a "church-hating nun" and her book, "Dead Man Walking," as "liberal drivel." He approved burying streams with mine waste--which three dissenting judges said "eviscerates" Clean Water Act language.

Steve A. Matthews was an officer and director of the Landmark Legal Foundation when it tried to nominate Rush Limbaugh for a Nobel Peace Prize. Landmark is headed by Mark R. Levin, who ridicules global warming as “nonsense” and “phony,” and Sen. John McCain (R.-Ariz.) and Joe Lieberman (I-Ct) as “liberal idiots.” In “Men in Black: How the Supreme Court Is Destroying America,” Levin thanked Matthews for having “supported me in all I do and wrote that the Supreme Court was “merely upholding the Constitution” in its long-discredited 1936 ruling that Congress lacks authority to regulate employer-employee relations, including “wages, working conditions, the right of collective bargaining, etc.”

Advise and Consent and Just Say No

The Constitution entrusts Senators with an “advise and consent” role in selecting lifetime members of our independent third branch of government, the federal judiciary. Our Senators essentially conduct job interviews to decide whether to confirm judges who serve for life and cannot be fired.

The importance of who serves on the bench was illustrated by a series of recent 5-4 Supreme Court decisions. For example, President Bush’s nominees, Chief Justice Roberts and Justice Alito, have been decisive votes in gutting landmark civil rights laws. In Massachusetts v. EPA, Roberts, Alito, Scalia and Thomas were one vote away from holding that the Constitution prohibited the case from ever being filed and that the Clean Air Act does not cover global warming gases from motor vehicles.

In nearly all federal cases, however, U.S. Circuit Court of Appeals judges have the final word on a wide range of Constitutional and other vital issues. We rely on fair and impartial judges to ensure citizen access to courts and to uphold and enforce laws that are violated by big corporations and powerful government officials.

In turn, we rely upon our Senators to ensure that they do not confirm unqualified nominees. This includes nominees whose records show that they would rewrite the Constitution to deny access to court and to strike down laws they personally do not like that protect our individual rights, health, safety, and environment.

President Bush’s pattern of choosing nominees because they will not be confirmed creates artificial vacancies that he has highlighted in a series of events designed to inflame his right-wing base.

The Senate, however, has amply demonstrated that it is more than fair by confirming 298 of Bush’s judicial nominees. If the Senate Just Says No to all controversial nominees, President Bush may begin to respect the Senate’s constitutional advise-and-consent role in selecting lifetime judges.