CONFIRMED JUDGES, CONFIRMED FEARS January – August 2004 Update A Further Look at How Appellate Judges Nominated by President Bush Are Already Threatening the Rights of Ordinary Americans People For the American Way Foundation October 7, 2004 Ralph G. Neas President 2000 M Street, NW ♦ Suite 400 ♦ Washington, DC 20036 Telephone 202.467.4999 ♦ Fax 202.293.2672 ♦ E-mail [email protected] ♦ Web site http://www.pfaw.org CONFIRMED JUDGES, CONFIRMED FEARS JANUARY - AUGUST 2004 UPDATE A Further Look at How Appellate Judges Nominated by President Bush Are Already Threatening the Rights of Ordinary Americans --------------- In January 2004, we published Confirmed Judges, Confirmed Fears: A Preliminary Look at How Appellate Judges Nominated by President Bush Are Already Threatening the Rights of Ordinary Americans.i The report examined whether President George W. Bush has made good on his repeated claims that in selecting nominees for the federal courts, he is looking for judges who will interpret the law, not make it. Our review was conducted against the backdrop of significant opposition from Senators and others to a number of the President’s nominees, who, opponents contended, have a record of trying to re-make the law to undermine civil and consumer rights, constitutional liberties, environmental protections, and the authority of Congress to protect these and other rights. Pursuant to its constitutional responsibility, the Senate has declined to consent to some Administration nominees because of such concerns, although it has confirmed the overwhelming majority. Our preliminary review last January of the record of the most important of President Bush’s confirmed judges -- those who sit on the federal courts of appeal –- indicated that the President has fallen far short in keeping his promise. As we discovered, in many key cases with divided rulings in the significant areas of concern raised about Administration nominees, appellate judges nominated by President Bush had already written or joined opinions seeking to significantly limit congressional authority and protection of individual rights. This update to our review includes cases decided between January 1, 2004 through August 31, 2004.ii The review includes all cases decided by split decisions, regardless of the position taken by Bush nominees. This review revealed, however, that the same disturbing trends that appeared in our preliminary review have continued. In cases decided during the first eight months of 2004, appellate judges nominated by President Bush have written or joined almost 50 opinions seeking to limit congressional authority and protection of constitutional, environmental, consumer, and individual rights. Again, this is particularly true of Bush-nominated judges who received significant opposition and concern, including Jeffrey Sutton, Dennis Shedd, John Roberts, Jay Bybee, Charles Pickering, and William Pryor. These judges have issued a number of opinions, primarily in dissent, that sought to: • deny the right of American POWs tortured during the Gulf War to sue Iraq • strike down a California city’s “living wage” ordinance 1 • uphold the constitutionality of a state’s discriminatory anti-abortion license plate • strike down as unconstitutional the application of an important provision of the Endangered Species Act • explicitly overturn court precedent protecting constitutional rights by preventing important controversies from being held moot • refuse to rehear a ruling upholding a law forbidding gay men and lesbians, even those who have served as foster parents, from adopting children • make it harder for victims of discrimination in employment to obtain punitive damages under Title VII In addition, in the eight months covered by this report, appellate judges nominated by President Bush, controversial and non-controversial, have in a number of cases prevented, or through dissents sought to prevent, individual Americans from having their day in court and presenting their claims to a jury. One way in which Bush judges have sought to deny litigants access to justice is through summary judgment, a procedure that allows a judge to rule on a case as a matter of law only when there is no genuine dispute of material fact. In a number of these cases, Bush judges have been specifically criticized by their colleagues for improperly applying the summary judgment standard and denying plaintiffs their day in court despite the existence of important evidence supporting their claims. Appellate court judges nominated by President Bush have written or joined opinions that, through summary judgment, dismissal of claims, and similar procedures, have sought to: • deny a fired 61-year-old worker the opportunity to present his claim of age discrimination, even though there was evidence that the company president had directed that he be fired because of his age • deny the right of a polio victim to bring a claim for wrongful denial of health insurance benefits • deny a female professor the opportunity to present her claim of unequal pay due to sex discrimination, despite supporting evidence • deny a fired 53-year-old worker the opportunity to present his claim of age discrimination, despite evidence that the company had systematically removed employees in their fifties in order to replace them with much younger workers Bush-nominated appellate judges have also written or joined other troubling opinions that have sought to: • deny the right of citizens harmed by corrupt police officers to sue police supervisors who likely knew about but failed to investigate the corruption 2 • make it harder to bring claims of race discrimination in lending • uphold a county sheriff’s practice of broadcasting live video of pre-trial detainees housed in the county jail on the Internet • make it harder for workers to bring claims of unlawful retaliation in employment under Title VII • deny protection to workers who had been fired in violation of federal law • give immunity to a municipality for the rape of a mentally retarded girl by its sheriff • make it harder for victims of sexual harassment in the workplace to sue their employer • adopt Attorney General Ashcroft’s “individual rights” theory of the Second Amendment • deny protections to the disabled under the Americans with Disabilities Act This update to Confirmed Judges, Confirmed Fears, like our original report, underscores the importance of careful Senate scrutiny of the Bush Administration’s judicial nominees. D.C. CIRCUIT DECISIONS John Roberts, D.C. Circuit • Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004): right of tortured American POWs to sue Iraq under terrorism exception to the Foreign Sovereign Immunities Act Seventeen American soldiers who had been held as prisoners of war and tortured by Iraq during the Gulf War brought suit under the terrorism exception to the Foreign Sovereign Immunities Act (FSIA) against the Republic of Iraq, the Iraqi Intelligence Service, and Saddam Hussein. This statutory exception to the immunity of foreign states from suit for money damages applies to claims for such damages for personal injury or death caused by torture or other acts of terrorism. The district court entered a default judgment against the defendants after they failed to appear and awarded compensatory and punitive damages to the plaintiffs totaling more than $959 million. The United States moved to intervene to contest the district court’s subject matter jurisdiction, arguing that the Emergency Wartime Supplemental Appropriations Act (EWSAA) “made the terrorism exception of the FSIA inapplicable to Iraq and thereby stripped the District Court of its jurisdiction” over the suit. 370 F.3d at 43. The district court denied the motion as untimely and the United States appealed. All three members of the D.C. Circuit panel agreed that the district court had erred in denying the motion to intervene. On the merits of the jurisdictional question, however, Judges Harry Edwards and David Tatel rejected the government’s argument and held that the district court did have jurisdiction over the case.iii In an opinion concurring in the judgment, Judge Roberts 3 disagreed, and would have adopted the position of the government that the EWSAA “deprived the courts of jurisdiction over suits against Iraq” for damages resulting from torture and other terrorist acts. Id. at 65. The result would have been to deprive Americans tortured in Iraq of any possible relief in federal court. Although the majority considered the jurisdictional issue “an exceedingly close question,” id. at 51, it concluded that there is nothing in the language of the EWSAA or in its legislative history “to suggest that Congress intended by this statute to alter the jurisdiction of the federal courts under the FSIA.” Id. at 57. In addition, the majority noted that the position of the government and Judge Roberts would lead to the “perplexing result” of restoring Iraq’s immunity “even for acts that occurred while Iraq was still considered a sponsor of terrorism.” Id. at 56. The majority explained that “[t]his perplexing result appears even more bizarre when the sunset provisions” of the relevant portion of the EWSAA are taken into account. Id. According to the majority, if the government were correct in its interpretation of the ESWAA, the federal courts would be deprived of jurisdiction only during the period from May 7, 2003 (the date of a Presidential Determination carrying out the authority of the EWSAA) until September 30, 2004 “over a suit against Iraq based on events that occurred