Will this judge rule for the powerful—and against The People?
10 min read
While all eyes are on social issues, the real litmus test is:
In 1981, when blowhard televangelist Jerry Falwell exclaimed that Sandra Day O’Connor was not right wing enough for him, and that every good Christian should rise up in righteous opposition to her nomination to the U.S. Supreme Court, Senator Barry Goldwater retorted: “I think every good Christian ought to kick Falwell right in the ass.”
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Twenty-four years later, here we go again. O’Connor is now stepping down from the top court, Chief Justice William Rehnquist will soon follow, and there are several openings on the little-known but equally important federal courts of appeals. So here come Falwell, Pat Robertson, James Dobson, and other flamethrowers of right-wing religious extremism demanding that their very own president must reward the faithful by stacking the courts—America’s third branch of government—with judges in their image. No mere strict conservatives in the O’Connor/Goldwater mold will do, they screech, instead insisting on nominees from the certifiably kooky right.
Sure enough, Bush has nominated some nutballs to the appeals courts— judges whose views on such social issues as abortion, gay rights, and Biblical government bring the Falwells to orgasm. In recent years, these issues have become preeminent in every debate over a court seat, as though they were all that courts deal with. Accordingly, the current battle in the U.S. Senate for confirmation of W’s nominees is being cast by the media and partisans on both sides as a titanic clash over the judicial enforcement of social values—the politically potent evangelical right versus moderates and liberals. But this singular focus on social issues deceives the larger public about the real reason these particular people have been chosen by Bush, and it drastically understates the true depth of what’s at stake for America in filling these judgeships. The essential populist reality is that whatever other ideological agenda Bush’s nominees will seek to impose from the bench, every single one of them will be dutiful and aggressive pushers of the corporate agenda. They will use their enormous judicial power to steal rights, money, property, and power from us consumers, workers, farmers, small businesses, the middle class, poor people, and other ordinary citizens on behalf of the corporate interests they have spent their entire careers serving.
"The issue isn't just jobs. Even slaves had jobs. The issue is wages." --Jim Hightower
Bush proclaims that he has “no litmus test” for people he chooses for judgeships—but that’s a lie. It’s true that, as governor of Texas, he named some judges who were not rabidly antiabortion, and not all of his federal nominees have been Falwellian on the subject. But being procorporate is an absolute litmus test for him.
The courts and you You wouldn’t know it from the establishment media’s coverage, but the vast majority of federal court decisions are not about gay marriage, abortion, the Ten Commandments, and the like. A far bigger chunk of appellate cases involve such matters as corporations trying to loot pension funds, HMOs denying proper care to patients, nursing homes abusing Granny, polluters contaminating our drinking water, executives defrauding stockholders, manufacturers making shoddy products, biotech companies and meat processors adulterating our food supply, retail giants practicing predatory pricing to squeeze out small competitors, bosses engaging in sexual or racial or age discrimination, companies injuring or cheating workers, developers grabbing other people’s property—and other variations on corporate profiteering. Courts have been the one place where even the poorest, least powerful American can hold the richest and most powerful accountable. That’s why Big Money, which already controls the executive and legislative branches of our government, is now going after the third branch with a vengeance.
They want the Supreme Court, of course, but also the 13 circuit courts of appeals. These relatively obscure panels of judges (Quick: Can you name even one judge on the appeals court for your area?) have as much or more say over our lives as do the Supremes. This is because the top court takes only about 90 cases a year, meaning that the appeals courts are the final stop for 99% of federal cases. Despite the right-wing whine that those bad ol’ Senate Democrats are blocking George W’s court picks, in fact they’ve given the nod to all but five of his 219 nominees. In May, cringing at GOP charges that they were being “obstructionists,” the Dems cut a weak deal with some of the quasi-moderate Republican senators, agreeing to lifetime judgeships for three true extremists. Sheesh. If the meek ever inherit the earth, these Senate Democrats are going to be land barons. Let’s meet a couple of those given a free pass:
PRISCILLA OWEN. By letting this political progeny of Karl Rove rise to a seat on the 5th circuit court, the Dems have saddled us with a total corporate ideologue who’ll spend the rest of her judicial life ruling against consumers, workers, the environment, open government, etc.
Priscilla spent 16 years as a lawyer representing oil, gas, and other energy giants at a powerhouse corporate-defense firm in Houston. Then, in 1994, she decided to serve these clients from a higher level, running for a seat on the Texas Supreme Court. Rove, who was engineering George W’s grab for the governor’s seat, took a shine to this dyed-in-the-wool corporatist and signed on as her political consultant—for a modest fee of $250,000.
Karl helped her collect $1.1 million from the Texas business establishment, leading her to victory. It was a savvy investment for the corporate donors who subsequently had cases before her—they enjoyed her avid support in 85% of their state supreme court cases. Enron, for example, was an Owen donor in ’94 and was repaid handsomely just two years later when she wrote the court’s opinion excusing the high-flying energy giant from having to pay a quarter-million dollars in local school taxes. Such other donors as Union Pacific railroad, Farmers Insurance, Texas Utilities, and HEB supermarkets had Priscilla faithfully on their side in every one of the 12 cases they had in her court.
Contrary to the right-wing mantra that judges should not be judicial activists, Owen is a notoriously pugnacious and energetic activist on behalf of corporate power. In ’98, for example, she sided with Uniroyal Goodrich Tire Company in a case in which a man was severely injured when a truck tire he was inflating exploded in his face. The court ruled for the victim—but Owen sourly dissented, claiming that the man was at fault for not having read Uniroyal’s printed warnings. She even tried to restrict the rights of juries by asserting that in cases where a manufacturer has issued a printed warning, jurors should not even be allowed to consider whether the product itself is unsafely designed.
Even Alberto Gonzales, who served on the state supreme court with her, once formally chastised her for “an unconscionable act of judicial activism,” and the very conservative Houston Chronicle editorialized that she “is less interested in impartially interpreting the law than in pushing an agenda.” Now she’s in a position to push her corporate agenda down the throats of all Americans.
WILLIAM PRYOR, JR. This guy is a twofer for Bush—a religious wacko and a career corporate shill, so the White House spent a fortune in political capital to put him on the 11th circuit court. They failed twice to get the Alabaman confirmed in 2003, but Bush nominated him again this year for a full life term—and he was part of the Democratic May cave-in.
They’ve given us another corporate lifer. His seven years in legal practice were in firms representing the likes of AT&T, Goodyear, GE, ADM, and Philip Morris. Then he went into politics, eventually becoming Alabama’s attorney general with the enthusiastic and generous backing of the state’s business powers.
He definitely danced with them that brung him, loudly proclaiming at the start of his term that he would not join other states in suing tobacco companies over their ill-gotten gains. A former AG who had taken on the nicotine dealers called Pryor “the biggest defender of tobacco companies of anyone I know. He did a better job of defending [them] than their own defense attorneys.”
"The issue isn't just jobs. Even slaves had jobs. The issue is wages." --Jim Hightower
Pryor also urged federal courts and Congress to roll back the Clean Water Act, and he filed briefs calling for the gutting of the Family Leave Act, the Age Discrimination Act, and the Disabilities Act. But his most outlandish embrace of the corporate agenda came with his 1999 creation of the Republican Attorneys General Association—a front group for channeling corporate cash into the campaigns of right-wing Republican AGs, thus currying favor with state officials charged with suing corporate wrongdoers. RAGA’s slogan could be taken from this old Russian proverb: “Tell God the truth, but give the judge money.”
As the Washington Post reported, RAGA was set up with “the explicit aim of soliciting funds from…industries facing state lawsuits over cancer deaths, lead poisoning, gunshots, and consumer complaints.” It was a lawsuit-protection racket for corporations, and the money poured in—Pryor himself took $100,000 of this corrupt money for his 2002 reelection. But he never had to declare the names of the donors, because RAGA launders unlimited corporate funds through an arm of the Republican National Committee.
In fact, the donors include Shell Oil, Brown & Williamson, Pfizer, MasterCard, Eli Lilly, Anheuser-Busch, Citigroup, SBC, Amway, US Steel, Aetna, Nextel, GM, and Microsoft. These stealth donations, clearly a conflict of interest for a state’s top lawyer, were a topic of inquiry when the Senate held hearings on Pryor’s court nomination. But, gosh, said Bill, he was totally unaware of any money that RAGA solicited from Alabama companies, nor could he recall whether any tobacco firms were RAGA members.
He lied. The Post uncovered documents showing that Bill personally phoned Alabama corporations in 1999 to get money for RAGA, and that he also rang up Philip Morris and Brown & Williamson to get these tobacco giants to give $25,000 each to become RAGA “Roundtable” members.
So, with the complicity of the hapless Democrats and the lack of basic journalistic curiosity by the media, Bush has now put a lying, corrupt, corporate toady on a court where he’ll get to rule over cases affecting you and me for the rest of his life.
There are many more of these corporate activists in Bush’s judicial corral. For example: • Janice Rogers Brown. Always identified in the media as “a sharecropper’s daughter,” she’s really spent her career as a loyal servant of giant corporations. She’s now ensconced on the D.C. circuit court where she’ll continue her crusade to trash the New Deal and deregulate corporate power.
• WILLIAM MEYERS III. A longtime lobbyist for mining and energy giants, he’s now been nominated to the 9th circuit court. As Bush’s top lawyer at the Interior Department since 2001, Myers’ main contribution has been to twist rules and common sense in order to open up more of our public lands to plundering by the industries he used to represent. • Henry Saad. A hardcore GOP activist in Michigan, he’s a lawyer who built his career defending such corporations as Ford and GE in cases involving the abuse of labor rights, injury of workers, sexual discrimination, etc. He’s nominated to the 6th circuit.
The corporate rush The Republican coalition of social- issue diehards and self-serving corporatists often comes apart on court decisions. Reagan appointee Sandra Day O’Connor, for example, is unacceptable to the Fallwellistas because she supports Roe v. Wade and affirmative action, but she’s been beloved by big business for supporting them on practically every case—especially those involving the amount corporations should pay when they harm someone.
Sandra was not enough, however. Realizing the appeals courts can be their bread and butter and that even some 40% of cases decided by the Supremes involve business matters, the U.S. Chamber of Commerce and the National Association of Manufacturers vet every Bush nominee and they’ll spend millions on election-style campaigns in the coming weeks to pressure senators to vote for corporate-minded judges. In fact, the Chamber and the NAM teamed up to submit two names to Bush as corporate America’s preferred choices for O’Connor’s Supreme Court seat. One of the two was John G. Roberts. Bush has now selected him for the seat. As in the case of previous Bush choices for judgeships, the fight over Robert’s nomination will center on his views on social issues, but he won Bush’s nomination because of his lifelong corporate loyalties.
When Pryor was up for confirmation, a corporate front group, bearing the deceptive name of Committee for Justice, ran a media blitz to back Pryor’s confirmation with ads that would make you think that CFJ is a bleeding heart, liberal outfit. The ads depicted Pryor as a victim of religious discrimination who was being blocked by Democrats because he’s Catholic. Of course, CFJ doesn’t give a damn about religion—it was organized and funded by lobbyists for tobacco, oil, insurance, and drug companies. Its chief operative is C. Boyden Gray, a corporate weasel from Daddy Bush’s presidency, whom you might remember for having advised Bush the Elder to lie about the Iran-Contra scandal. Gray not only serves as Corporate World’s shadowy liaison to George W on judicial nominations, but you can also find him on Fox News posing as an unbiased “Supreme Court analyst.”
The Bushites and their right-wing attack dogs have assaulted Democrats and anyone else who opposes W’s nominees as “obstructionists”—a tag that America’s gullible media establishment now uses unquestioningly. The right-wing message is that it’s the prerogative of the president to name justices, and the Senate minority must defer to his choices. Horseradish. In forming our government, the framers were adamant about having strong checks and balances and a clear separation of powers, for they rightly feared the rise of an unbridled, imperial executive. They gave the power of “advise and consent” to senators specifically so the nominees of a president could be thoroughly vetted—not merely on their technical qualifications, but especially on their records, their views on public-policy issues, and, yes, their ideology.
It’s not obstructionist to demand straight answers from these extremists, nor is it obstructionist to block them for their extremism. Rather, this is the Constitutional duty of senators! Bush and his corporate cronies own two branches of our government—let’s not roll over and let them take the last one.