Understudies

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This January, the Bush administration nominated James Leon Holmes, a
Little Rock lawyer, to sit on Arkansas's Eastern District Court. On
April 10, however, Holmes's nomination was delayed indefinitely in
the Judiciary Committee after a group of Democrats, along with
moderate Republican Arlen Specter, balked at his religious-right
provenance. (As the former president of Arkansas Right to Life and
a longtime anti-abortion activist, Holmes had authored articles
arguing that "the woman is to place herself under the authority of
the man" and comparing the pro-choice movement to Nazi Germany.) In
an almost unprecedented move, on May 1, Republicans sent Holmes to
the Senate floor without the Judiciary Committee's imprimatur.Ultimately, though, what makes Holmes an anomaly among President
Bush's district court nominees is neither his far-right provenance
nor the fact that he has made it to the Senate floor. What's
anomalous about Holmes is that Democrats slowed his nomination down
at all, even temporarily. While Democratic senators have waged a
few high-profile battles over Bush's nominees to higher courtsfor
instance, Miguel Estrada, Priscilla Owen, and Charles Pickeringthey
have put up little resistance to the administration's steady
politicization of the lower federal courts. "What has been noticed
at the appellate level is also happening at the district court
level," says one aide to a member of the Senate Judiciary
Committee. "It's just no one pays attention."

District courts are the lowest and most numerous in the federal
judicial system, and as such they are often deemed politically
irrelevantconcerned with, as one staffer to a member of the
Judiciary Committee puts it, "making widgets. " But those widgets
are the building blocks of much of U.S. law. Because, in most
instances, district courts are the first courts to hear a case, they
set the tone for later appeals. "District courts make, in most
cases, the most important decisions and the decisions that
appellate courts defer to," says Peter Rubin, a lawyer and
president of the American Constitution Society. "Should we verify a
class action, should we grant summary judgmentand that's the end of
the case for a lot of people." District courts can also provide
political cover for more conservative judges at the appellate and
Supreme Court level by reducing the chances that those courts will
be forced to reverse decisions. "One of the problems," says Michael
Gerhardt, a professor at the William and Mary School of Law, "is,
if you don't take ideology into account in the lower-court
nominations, then your higher judges are forced to reverse more
often."

In Louisiana, for example, a recent Bush appointee to the Eastern
District Court, Jay Zaineywho was unanimously confirmed by the
Senate last year despite a record as an anti-abortion activistruled
against a woman who claims she was denied access to abortion
services while in prison. The woman, known to the court as Victoria
W., had been sent to prison for a parole violation and soon after
learned from the prison doctor that she was pregnant. She requested
an abortion but was denied; by the time of her release, it was too
late to obtain one. Victoria W. contacted a lawyer and filed suit
in federal court, and the case came before Zainey in April 2002.
Zainey dismissed the case in a three- page order, refusing even to
hear it. The decision was unprecedented. "No federal court in the
country," said Victoria W.'s lawyer, Linda Rosenthal, "has ever
held constitutional a prison policy that intentionally obstructed a
prisoner's right to terminate her pregnancy." Victoria W. is
appealing the verdict, but that appeal will be heard by the U.S.
Court of Appeals for the Fifth Circuit, which is already
overwhelmingly conservative and will only grow more so if Bush
succeeds in placing Owen and Pickering on it. By making a
controversial ruling at the district level, Zainey gives the
higher-profile appellate court room to uphold his ruling while
avoiding the taint of right- wing judicial activism.

The flip side works as well. A recent ruling by Sam Haddon, a Bush
appointee in Montana, in favor of an oil- and
natural-gas-exploration company accused of violating the Clean
Water Act (CWA) was overturned in April by the U.S. Court of
Appeals for the Ninth Circuit. In doing so, the appeals court
expanded the CWA's list of pollutants and opened up the possibility
of further suitswhich reinforces its image as an excessively
liberal bench. And, paradoxically, Haddon's ruling, which experts
say represents an almost unprecedentedly narrow interpretation of
the CWA, will likely receive much less public scrutiny because it
took place at the district level.

Another reason district court benches matter is that they serve as
"farm teams" for higher courts. Because appellate nominees who come
from the district courts have federal judiciary experience,
district courts make excellent places to cultivate future appellate
court nominees and to park potentially controversial nominees. Take
William Steele. An Alabama magistrate judge, he was nominated in
2001 to the U.S. Court of Appeals for the Eleventh Circuit. But he
soon came under withering fire from a bevy of civil rights groups,
who charged him with "racial insensitivity" in a number of
anti-discrimination suits. His nomination was withdrawn, but, in
January, Bush nominated him to Alabama's Southern District Court;
he was confirmed by voice vote in March. After a few years building
a federal judicial record at the district level, he could be an
almost unstoppable appellate court nominee.

So far, the administration has filled 100 district court seats, and,
while most of the nominations have not been controversial, as a
whole they have been at least as ideologically oriented as the more
high-profile names at the appellate level. On the list is Paul
Cassell, confirmed to the Utah District Court in May 2002, who
previously led a campaign to overturn the Supreme Court's landmark
Miranda ruling; Michael Mills, a Mississippi nominee known for his
anti-abortion views while on the state supreme court; and Nebraska's
Laurie Smith Camp, who has been an outspoken abortion-rights
opponent. Another frequently cited appointment is that of Ron
Clark, who recently began his judgeship on Texas's Eastern District
Court. As a member of the Texas House of Representatives, Clark put
forward a series of bills to limit access to reproductive-health
services, including placing zoning restrictions on clinics and
instituting mandatory 24-hour waiting periods. Despite his record
on abortion and his lack of judicial experience, he was approved by
a voice vote in October 2002. However, Clark was also running for
reelection to the narrowly divided Texas House, and, if he had
immediately accepted the administration's appointment, he would
have likely ceded the closely contested race to a Democrat. So,
with Bush's blessing, Clark refused the appointment until after the
electionwinning and then promptly resigning, an unheard of step that
blurs the line between the White House's political interests and
its duty to promote an independent judiciary.

There is no formal requirement for how the president nominates
district court nominees; nevertheless, there are traditional checks
and balances that have evolved over the last 50 years, practices
that are being either rewritten or discarded by the administration.
These include ignoring state judicial nominating committees,
rejecting American Bar Association ratings, placing Justice
Department political appointees in positions related to judicial
selection, and refusing to cooperate with home-state senators. Says
one former Justice staffer, "They have systematically ignored
bipartisan commissions [and] ignored traditions of consultation
that were in place when we got there and have been in place for
years in order to make these ideological appointments and political
rewards for jobs well done."

Bush has come under especially heavy fire for ignoring home-state
senators when making his judicial picks, reversing a tradition that
had held since the Eisenhower administration. In the past,
administrations have either allowed senators from a district's
state to make nominations or have given them broad sway in the
selection, even when the senators are both from the opposing party.
Several states have even organized bipartisan nominating committees
in an attempt to institutionalize this coordination. But, in a
number of instancesin Washington, Hawaii, Wisconsin, and Florida
among othersthe administration has ignored both the senators and,
in many cases, the commissions. In the case of Florida's Southern
District Court, the White House not only overlooked nominees put
forward by the state's Judicial Nominating Commission, it also
rebuffed concerns about the process from Democratic Senators Bob
Graham and Bill Nelson. Both senators criticized the administration
publicly for going ahead with its own nominee, Cecilia Altonaga
(though, neither voted against her when she was confirmed on May
6). "It's a stunning lack of consultation with the home-state
senators," says one former Justice staffer. "For years, there was
fabulous cooperation between the senators in Florida no matter what
the party. ... We had no trouble filling Florida judgeships with
very qualified, nonpolitical people, and [Bush] just ripped it
up."

Democrats, for their part, say they are so busy fighting at the
appellate level that a number of controversial nominees have
slipped through virtually unopposed. "The groups on the progressive
side of the House are battling this furiously, but there just
aren't enough resources," says a former Justice Department
official. Even many nominees who should have been controversial
slipped through. As an example, several Democratic staffers cite
John Bates, whom Bush appointed to the D.C. District Court. A
former independent counsel's office lawyer under Kenneth Starr,
Bates was nominated to the court in June 2001 and received
unanimous Senate approval in December of that year. Soon after
coming to the bench, he was assigned to hear Walker v. Cheney, in
which the General Accounting Office (GAO) sued the vice president
for access to documents detailing meetings with energy-industry
officials. In December, Bates ruled against the GAO. That ruling,
in addition to effectively closing off public inquiry into the
energy task force, could have a disastrous long-term impact on
congressional oversight of the executive branch. And it proves
definitively that a district court judge can have a powerful impact
on the nation's political and legal battlessomething the Bush
administration understands all too well.

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