Prepare for the not-so-magnificent seven. With Republicans poised to pull the trigger on the nuclear option, President Bush’s right-wing nominees ride again.
Their return — all were blocked in the Senate their first time around — is propelling the government into a crisis, as they prepare to take seats in federal appeals courts, the second highest position in the judicial branch of government, beneath only the authority of the U.S. Supreme Court. Democrats oppose them for their extreme judicial and political philosophy, what they consider a conservative version of “judicial activism.”
An assessment of the nominees’ records suggests that all consider government regulation a central problem, while they view private enterprise and property a bedrock constitutional right. These nominees are the most visible examples of a judicial nomination trend that the Center for Investigative Reporting discovered in examining all appeals court and court of federal claims nominees during George W. Bush’s first term as president.
In the CIR study, 21 of 59 had a history of working as lawyers and lobbyists on behalf of the oil, gas and energy industries. This trend concerns legal scholars, who fear that long-term industry ties may raise questions about the judges’ ability to be fair and objective. Rutgers University School of Law professor Jay Feinman told CIR, “Increasingly you will have federal courts with a pro-industry and anti-government perspective.”
Some of the nominees’ judicial philosophies were shaped while in the service of corporate clients (Owen, Saad, Pryor, McKeague and Myers), and some while working closely with the Republican Party (Pryor, Saad, Brown, McKeague and Myers). Democratic opponents see them potentially eroding public power and expanding private reach, while heartening the religious right on key issues such as abortion.
At stake is no less than Republican domination of all three branches of government — not only to recast laws, but to extend their impact long after President Bush has left office, and undo a generation of legal precedents. Here’s a look at the extremist credentials they would bring to the bench.
William H. Pryor Jr., nominated to the 11th Circuit Court of Appeals
He argued that civil rights for same-sex couples would logically extend to activities like necrophilia and bestiality.
During his seven-year tenure as the attorney general of Alabama (1997-2004), Pryor’s unabashed conservativism was legendary. His strong public opinions on a litany of contemporary issues suggest where his judicial opinions might be headed if his nomination is confirmed. He once called Roe vs. Wade “the worst abomination of constitutional law in our history”; in 2002 he argued in the Supreme Court, on behalf of Alabama and four other states, for states’ execution of mentally retarded inmates; he termed the Voting Rights Act “an affront to federalism and an expensive burden that has far outlived its usefulness”; and he affirmed in 2003 that extending the civil rights of same-sex couples would logically extend to activities like necrophilia and bestiality. It came as no surprise, then, when he rescheduled a family trip to Disney World to avoid arriving during a “Gay Days” event.
He is considered a leading voice in the modern states’ rights movement: “With the New Deal, the Great Society, and the growing federal bureaucracy,” Pryor testified at a 1997 U.S. Senate Judiciary Subcommittee hearing, “we have strayed too far in the expansion of the federal government.”
Pryor’s close ties to industry have been critical in his rise to power. The single largest donor to his 2002 election campaign for attorney general was the Progress PAC, the political action committee of the Alabama Business Council. He founded the Republican Attorneys General Association (RAGA) with “the explicit aim of soliciting funds from the firearms, tobacco and paint industries and other industries facing state lawsuits over cancer deaths, lead poisoning, gunshots and consumer complaints,” according to the Washington Post. Mike Moore, attorney general of Mississippi and the first attorney general to sue the tobacco companies, called Pryor “the biggest defender of tobacco companies of anyone I know. He did a better job of defending the tobacco companies than their own defense attorneys.”
Pryor stood alone among the 50 state attorneys general in challenging the constitutionality of key portions of the Clean Water Act and the Endangered Species Act, asserting that land use and wildlife protection are “traditional areas of state environmental primacy” that should remain free of federal government regulation. The Forestry PAC of the Alabama Forestry Association contributed $43,500 for his reelection.
Confirmation to the 11th Circuit would put him one step closer to the Supreme Court — which could be a troubling development for at least one of the court’s current members. To a gathering of Federalist Society members in 2000, Pryor once opined, “Please God, no more Souters!”
Janice Rogers Brown, nominated to the District of Columbia Circuit
She is known for her fervent anti-government attacks, and once received a “not qualified” rating from the American Bar Association.
Janice Rogers Brown, a rock song-quoting daughter of an African-American sharecropper, currently sits on the California Supreme Court as its first black woman justice. Prior to Brown’s rise to the California Supreme Court, her legal and judicial career was closely connected to the Republican Party, which saw a judicial star in the black conservative. Republican Gov. Pete Wilson appointed her his legal affairs secretary, and then to a seat on the state Court of Appeals in 1994. The legal establishment was unimpressed, though, and prior to her appointment she received a “not qualified” rating from the American Bar Association.
Brown startled many legal observers with her speech in 2000 to the Federalist Society in Chicago, when she warned that, “Where government moves in … the result is a debased, debauched culture, which finds moral depravity entertaining and virtue contemptible.” Brown has denounced President Franklin Roosevelt’s Supreme Court as transforming the Constitution into a “significantly different document,” and the Democratic New Deal as the triumph of “our own socialist revolution.” It is this fervid ideological opposition to government and regulation of private enterprise that causes Democratic opponents to denounce her lack of judicial fairness. Critics fear Brown’s anti-government attacks, and opposition to regulation of corporate and financial interests that could block her impartiality on the federal court.
William Myers III, nominated to the 9th Circuit Court
In 2003, a federal court concluded that he had badly misinterpreted federal law.
Myers’ long history of working for the law firm Holland & Hart as a lobbyist on behalf of the mining and energy industries has galvanized a broad coalition of environmental, health and consumer groups against his nomination. Democrats fear that he will attempt to give private property rights greater weight in judicial decisions than attempts to protect public lands, water and endangered species. Of particular concern is Myers’ nomination to the 9th circuit, whose jurisdiction over the Western states covers many of the same industries whose interests he has spent his career lobbying or representing in court.
Myers served from 2001-03 as solicitor general of the Department of Interior. In 2003, a federal court concluded that Myers had badly misinterpreted federal law in permitting a mining company to operate on public land in California. The National Congress of American Indians, a coalition of more than 250 tribal groups, opposes Myers, claiming that the policies he executed during his tenure at the Interior Department threatened native sites without consulting the tribes involved.
As Salon reported last year, Myers’ congressional lobbying in 2000 on behalf of major coal interests resulted in legislation that paved the way for a merger between two major coal companies that was later opposed by the Federal Trade Commission. The commission concluded that the merger was potentially anti-competitive and harmful to consumers and electricity users. These same coal interests routinely have cases before the 9th Circuit Court.
Finally, Democrats on the Senate Judiciary Committee point out that Myers has minimal courtroom experience and has never been a judge. He received a “qualified” rating from the American Bar Association, the ABA’s lowest passing grade, with a minority voting “not qualified.”
Priscilla R. Owen, nominated for the 5th Circuit Court
A strident opponent of reproductive rights, workers’ rights, civil rights, consumers’ rights and environmental protection.
Priscilla Owen hired Karl Rove to run her first campaign for the Texas Supreme Court, where she has served as a justice since 1995. Critics charge that her confirmation to the New Orleans-based 5th Circuit Court of Appeals will unduly favor the oil and gas industry she represented as a lawyer for the bulk of her legal career with Andrews & Kurth, for whom she worked from 1978 to 1994. Her opinions thus far on the Texas court suggest strident opposition to reproductive rights, workers’ rights, civil rights, consumers’ rights and environmental protection.
Of special note has been White House counsel Alberto Gonzales’ criticism of Owen as trying to implement “an unconscionable act of judicial activism” when they served on the Texas Supreme Court together, for interpreting a parental-consent statute to please antiabortion interests. Owen has proposed a particular view that abortion law be interpreted with a “religious awareness” standard.
While working at Andrews & Kurth in Houston, Owens was involved repeatedly on behalf of oil, gas and other energy-industry clients — who later became prime donors to her campaigns for the Texas Supreme Court. Texans for Public Justice, a legal watchdog group, reports that Owen favored donors to her judicial campaigns 85 percent of the time when they appeared before her in court.
Owens’ hometown newspaper the Houston Chronicle has editorialized that Owen is “less interested in impartially interpreting the law than in pushing an agenda.”
Richard Allen Griffin, nominated to the 6th Circuit Court
He advocated excluding prisoners from protections under the Americans with Disabilities Act.
Critics cite Griffin’s tendency toward restricting the legal rights and protections available to plaintiffs that have come before the Michigan state Supreme Court, where he has served since 1990. In a 1994 case, the court reversed a decision written by Griffin that rejected a claim by striking workers being replaced by permanent employees that they were entitled to unemployment benefits under state law. At times his opinions have suggested that, if not bound by precedent, Judge Griffin would be inclined to inject personal ideology into judgment.
In Doe vs. Michigan Department of Corrections, prisoners brought a class action against the Michigan Department of Corrections to obtain health benefits on the basis of their HIV-positive status. While the case was pending, the U.S. Supreme Court decided that the Americans with Disabilities Act (ADA) did apply to prisons and prisoners. Griffin begrudgingly reversed a trial court decision against the prisoners. In his opinion, he stated that he found in favor of the prisoners “only because we are required to do so … Were we allowed, we would … affirm the holding of the trial court” that the prisoners’ case should be dismissed. “We urge Congress,” he continued, “to amend the ADA to exclude prisoners from the class of persons entitled to protection under the act.”
David W. McKeague, nominated to the 6th Circuit Court
As a district court judge, he was reversed by the 6th Circuit in several cases for “abuse of discretion.”
As a director of the Michigan law firm Foster, Swift, Collins & Smith, in Lansing, Mich., David McKeague specialized in representing banking, utility, oil and gas clients such as First of America Bank, Shell Oil Company, Grace Petroleum Corporation and the Michigan Oil and Gas Association. After becoming a director of the firm, he was elevated by President H.W. Bush to a seat on the U.S. District Court in Michigan in 1992.
A coalition of environmental organizations oppose McKeague on the grounds that his legacy of work with the energy industry may predispose him toward anti-environmental judgments. Critics of McKeague’s judgment observe an eagerness to get rid of cases on summary judgment, citing an opinion that one of a district court judge’s important responsibilities lies in “weeding out frivolous” cases. How one defines such cases is of concern to his critics: McKeague was reversed by the 6th Circuit in several cases for “abuse of discretion,” as in Northwood Wilderness Recovery Inc. vs. U.S. Forest Service, when an appellate court reversed a McKeague ruling that permitted a logging and clear-cutting project by the Forest Service without environmental analysis. The appellate court made its unanimous decision and called McKeague’s ruling “arbitrary and capricious.”
Opponents to his nomination also point toward his bias on the bench against workers’ rights, civil rights and prisoners. In 1994, he sided with Republican Gov. John Engler of Michigan in a high-profile case against the U.S. Justice Department, which sought an investigation into widespread reports of sexual abuse of women in state prisons.
McKeague worked as general counsel, and has been a member of, the State Central Committee of the Michigan Republican Party from 1985 until 1992; he served on numerous political committees, including the National Steering Committee for Lawyers for Bush.
Henry Saad, nominated to the 6th Circuit Court
He built his legal career on defending major corporations from sexual harassment and discrimination lawsuits.
As a labor and employment lawyer in Michigan working for the firm Dickinson Wright, Saad focused largely on defending corporations — including Ford Motor Co., General Electric and Eli Lilly & Co. — with a focus on averting sexual harassment and discrimination lawsuits. Critics have questioned whether his history representing major corporations has influenced his judicial track record on labor rights and personal injury on the Michigan State Court of Appeals, where Saad has sat since 1994. In a 1997 personal-injury case, Judge Saad dissented from the majority’s ruling in favor of a plaintiff who had been severely injured in an automobile accident caused by the defendant’s admitted negligent operation of her car. His colleagues in the majority criticized Saad’s dissent as judicial activism, “reading language into the statutes that is not there and impermissibly steps into legislative territory.” On the other hand, Saad authored two legal journal articles in the mid-1980s defending the rights of employees afflicted with AIDS to be free from discrimination in the workplace.
Democratic objections to Saad’s nomination are more a matter of principle than an objection to his judicial record. Michigan’s two senators, Carl Levin and Debbie Stabenow, blocked his nomination in part because Republicans would not allow votes on two of President’s Clinton’s judicial nominees, and to protest President Bush’s breaking with a tradition of consulting with home-state senators about nominees to their district courts. Saad has been active in Republican politics, as co-chair of Michigan Lawyers for Reagan-Bush 1984, Michigan Lawyers for Bush-Quayle 1988, and Michigan Lawyers for Engler for Governor in 1990. He contributed $2,000 to George W. Bush’s 2004 reelection campaign.
The outcry has run the gamut: From an angry religious right to wary liberals and Senate Democrats, President Bush managed to please almost no one with his nomination of Harriet Miers for the nation’s top bench. But as pro-lifers and pro-choicers alike search for some scrap of ideological evidence in Miers’ record to soothe their fears or fan their ire, one heavyweight constituency is quietly relishing the pick: corporate America.
One thing Miers has left clear in an otherwise thin paper trail is that she built her career on defending large corporations. She did her best to fend off class-action lawsuits by angry consumers claiming to be ripped off by Microsoft, the Texas Automobile Dealers Association, and former mortgage industry giant Lomas & Nettleton. She also has experience with the delights of contract conflicts and other tiffs between companies. Though President Bush singled out other accomplishments while announcing her nomination, Miers has been a board member of Dallas’ Better Business Bureau and the Greater Dallas Chamber of Commerce. Her past campaign contributions to both Democrats and Republicans (the lion’s share to Republicans) may befuddle ideologues — but they undoubtedly make sense to big business, which often likes to play both sides of the aisle.
Since big companies care more about the bottom line than conservative social policy, corporate America is likely to come out in strong support of Miers as the nomination process continues. The U.S. Chamber of Commerce has already volunteered praise for Miers. “In terms of her experience with business issues — yeah that’s a plus for us,” said Robin Conrad, senior vice president of the U.S. Chamber of Commerce’s National Chamber Litigation Center. “It’s really important that there are justices on the court that are familiar with the complexities of business issues and their practical implications.”
The National Association of Manufacturers is defending her against detractors while it follows through on its own endorsement process. NAM’s blog immediately stood up for Miers, bemoaning how quickly she became “Harriet-Miers-a-person-with-no-judicial-experience.”
“Almost a third of the Justices appointed in the last seven decades came with no judicial experience,” wrote NAM spokesperson Pat Cleary. “Her bio is filled with a lot of ‘firsts’ and accomplishments that aren’t shared by most other lawyers,” added Cleary, echoing one of Bush’s key talking points on Miers. Still, perhaps catching on to social conservatives’ strong misgivings about Miers, the blog backpedaled the next day, offering that “the post was not to advocate, but was to call for a respite and to say that groups ought not rush to judgment.”
Whether the Senate judiciary committee will wrest substantive answers from Miers during hearings remains to be seen, but the clearest indication of her legal outlook, at least for now, lies with the cases she tried for her corporate clients. When car buyers sued the Texas Automobile Dealers Association and hundreds of dealers in 1997, claiming dealers were fixing prices, breaking antitrust laws and ripping them off by passing on a state tax to customers, Miers stuck up for the car dealers. Miers was brought in as lead counsel because of her reputation on class action and antitrust matters, according to attorney Robert Mowrey of Locke Liddell & Sapp, who took over the case from her when she left the firm. The federal portion of the suit has since lost its class-action certification, and currently many car dealers are in the process of settling, Mowrey says.
“She was instrumental,” said Karen Phillips, chief counsel for the association, referring to the battle against class-action effort. “I was very impressed with her diligence and hard work.” Brushing off criticism of Miers as “poppycock,” Phillips said that as an experienced corporate attorney, Miers brings a needed perspective to the Supreme Court. “The fact that it is so costly, it’s a tremendous strain on any organization to have to go through litigation and it’s unfortunate because often times you get sued and it is spurious,” said Phillips. “So I think she brings that understanding.”
In 1993 computer users sued Microsoft for breaking consumer protection laws, charging that the computer giant had unfairly sold them new software (MS-DOS 6.2) to correct a problem with Microsoft’s MS-DOS 6.0, instead of replacing it for free. Microsoft hired Miers to fight back; she served as lead counsel and head of strategy in the case. As she prepared to appeal the class-action certification of 11 million consumers to the Texas Supreme Court in 1996, the trial judge reversed herself and denied class-action status.
“This was a very big deal,” says Jerry Clements, a colleague of Miers’ when she worked at Locke Liddell & Sapp, and currently head of the litigation section at the firm. “This case was the beginning of an evolution in Texas jurisprudence that made it much more difficult to get class-action certification, and she was instrumental in it.”
Miers has represented other deep-pocket clients under attack, including large banks and a life insurance company. Additional big-name heavy-hitters she defended include Dupont, Disney, Miramax and the then Anaheim Angels.
Business clients apparently were key to Miers’ short-lived political career. When she ran for the Dallas City Council, where she served from 1989-91 as an at-large member, the Dallas Morning News reported, “Some political insiders describe Ms. Miers as the ‘establishment’ candidate, saying she has the support of the downtown business community.”
Bush’s Miers pick more than a decade later points to an intriguing tension within the Republican Party, between its ideology-driven right-wing base and its constituency of conservative business leaders, who are eager to develop stem-cell technology, and hire and promote talented employees, whether they be gay, lesbian or straight. Some observers say the Miers nomination follows a pattern Bush established back when he was governor of Texas, picking judges that reward corporate-friendly supporters and special interests.
There’s no question that many of Bush’s judicial appointments to district and lower courts in Texas often rewarded those backers, says Dallas Morning News senior political writer Wayne Slater, a longtime observer of Bush and the author of two books on the president’s most trusted lieutenant, Karl Rove. “A number of the judges he named,” Slater says, “were recommended by interests that wanted to limit lawsuits against business.”
If there is a dichotomy in Bush’s judicial selections, the struggle over it has already been on display in the defense of Miers this week. A spokesperson for the conservative Judicial Confirmation Network told the Boston Globe that colleagues on the Republicans’ right wing were being reminded that Miers had helped Bush select scores of judges to fill appellate and lower court seats who did share their ideological concerns and outlook. “There’s a lot of her fingerprints on those judges,” the conservatives were told, in an effort to mollify their reluctance about Miers.
Both of Bush’s Supreme Court picks had substantial careers as corporate defense lawyers; Chief Justice John Roberts, who not only represented various industries but lobbied for agribusiness and the cosmetics industry, could face serious problems regarding conflict of interest due to his own corporate history. In contrast, Bill Clinton’s two Supreme Court nominees, Stephen Breyer and Ruth Bader Ginsburg, taught at universities and worked for the Senate Judiciary Committee and the American Civil Liberties Union, respectively, before becoming federal judges, and later top justices.
The same corporate profile for Bush nominees can be found at the next highest level of the federal judiciary. In the 5th Circuit, for example, which includes Bush’s and Miers’ home state of Texas, an examination of Bush’s appeals court nominees by the Center for Investigative Reporting found that three of the four picks had substantial energy-industry connections that spanned over 50 years of their collective careers. Two of those, Edith Brown Clement and Priscilla Owen, were said to be on Bush’s short list for the Supreme Court.
To be fair, Miers seemed to balance her heavy corporate client list at her law firm by advocating for and participating in pro bono legal work. “We can serve as the state’s conscience, urging effective responses to the needs of the poor,” Miers wrote in the Texas Bar Journal in 1992. “Particularly, we can do a better job as a profession and as individuals in ensuring legal assistance to those who need it and cannot afford it.”
“Harriet I think brings a great deal to the table,” says Jan Hart Black, president of the Greater Dallas Chamber and a longtime friend of Miers. “She not only had very high-powered corporate clients but she was committed to providing significant pro bono legal work in her community at the same time.”
For one brief period of time just prior to her law school graduation in 1970, Miers worked for the famed San Francisco attorney Melvin Belli, known as the “King of Torts” for his lawsuits representing injury victims. Belli, often attacked as anti-business, once called himself “the poor man’s ticket to the courtroom.”
“It was good for her to be exposed to that,” former Belli law partner Robert Lieff mused this week in the San Francisco Chronicle, following Miers’ nomination. “It’s a lot different than what she went off to do.”
“I have no platform,” said Chief Justice-designate John Roberts to members of the Senate Judiciary Committee when hearings convened Monday on Capitol Hill. “I come before the committee with no agenda.”
But what Roberts does bring before the committee is a long list of ties to corporate America from his years of working as a lobbyist and an attorney in Washington on behalf of business and special interest groups. He also gives the Judiciary Committee a golden opportunity to shed light on a thorny but still largely ill-defined issue: how Supreme Court justices should contend with potential conflicts of interest, including whether they should recuse themselves from a case.
Within minutes of the White House announcement of Roberts’ nomination in July, U.S. Chamber of Commerce president Thomas J. Donohue praised him as “highly regarded and well-respected by the legal and business communities.” On its Web site, the National Association of Manufacturers prominently features a photo of Roberts (along with a new blog on judicial nominations), accompanied by the headline “The Business Case for Supreme Court Chief Justice Nominee John Roberts.”
Roberts is the beneficiary of the organization’s first-ever lobbying campaign for a Supreme Court nominee. Two members of its executive committee represent corporate interests that Roberts himself represented as an attorney: Toyota and the coal mining industry.
As the Senate deliberates whether Roberts should lead the nation’s highest bench for what may be decades to come, the issue of judicial conflict of interest is relevant like never before. With respect to corporate America, Roberts’ career and financial-investment profile stand out among sitting judges: His 2005 financial-disclosure form lists 78 stock holdings, which range from high-tech to healthcare, to mass media and corporate real estate. His net worth has been listed at roughly $5.3 million, and his earnings at law firm Hogan & Hartson were more than a million dollars in 2003.
It’s difficult to predict what cases will come before the court in the coming years, but Roberts’ personal investments in numerous top companies across a variety of industries make him a prime candidate for appearances of impropriety. Companies whose stock he owns in the high-tech and telecom sectors include Dell Computer, Microsoft, Texas Instruments, Intel, Agilent, Cisco, Novellus, Hewlett-Packard, Lucent and Nokia. In healthcare: Pfizer, Merck, Johnson & Johnson, AstraZeneca, Hillenbrand, and Becton, Dickinson. In big media: Time Warner, Disney and Blockbuster. In finance and real estate: Citigroup, State Street and Washington REIT. (Experts will presumably advise Roberts to avoid recusals related to his extensive stock holdings by placing his assets in a blind trust.)
Specifically, Roberts’ Pfizer stock presents a potential conflict with an upcoming high-court case for which the drug giant has filed a friend-of-the-court brief. Meanwhile, his work for Chrysler and Toyota could be a conflict in an upcoming case involving the National Automobile Dealers Association, while a mining company has a case on the docket with potentially significant implications for the industry — another for which Roberts worked. Such cases, with industry-wide implications, may explain why the National Association of Manufacturers’ head, John Engler, has asserted that Roberts is a jurist who “get[s] it right.”
Roberts’ mentor, the late Chief Justice William Rehnquist, expressed in 2000 his widely held but stringent take on one facet of the matter: “[A] judge should recuse himself whether he holds one share or a thousand shares of stock in a corporation that is party in a case before his court.”
But that may be just the beginning of the issue. Rehnquist’s approach, which is based in federal law, lets judges avoid grappling with messier potential conflicts — including, in Roberts’ case, those involving business clients that helped him finance his investment portfolio.
Beyond his stock holdings, some of the corporate clients Roberts represented while in private practice at Hogan & Hartson, where he was a partner for 12 of his 13 years, could also present the appearance of impropriety if Roberts were to rule on a high-court case involving them. They include Fox Television, Digital Equipment, Peabody Coal and the National Mining Association, Litton Industries, Rush Prudential HMO, Toyota, Chrysler and NBC. In addition, Roberts lobbied successfully for the peanut industry in 1996 and 1997 to keep huge federal peanut farming subsidies intact; he was a registered lobbyist for the Cosmetic, Toiletry and Fragrance Association; and he represented the cattle industry.
As chief justice Roberts may also run into conflicts of interest with a former colleague from Hogan & Hartson, Gregory G. Garre, who worked with Roberts for years and succeeded him as head of the firm’s Supreme Court and appellate practice. Garre has two cases on the court’s lineup this fall, one involving the real estate industry (in which Roberts, as noted above, is also an investor).
Garre has been generous in his praise of his former colleague. He told the Los Angeles Times that Roberts’ arguments were “difficult to tear apart. To do that over and over, where you might have gotten 50 questions from different justices, was what made John extraordinary.”
Recusal is part of a huge — and largely unresolved — ethical debate: During a recent five-year period, 3,673 complaints against federal judges’ actions or conflicts were closed by the judiciary with action taken against a judge in only six cases, an average of one response for every 600 complaints filed.
Federal law requires any federal judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned” and most have interpreted this to mean judicial disqualification should come “with even the appearance of impropriety.” The law specifically states that federal judges should recuse themselves in cases they worked on while in private practice or in practice for the government and in cases where they have a direct financial interest. This law has been interpreted in dramatically divergent ways by the various justices.
The rules on Supreme Court recusals are less defined than for lower federal courts. Supreme Court justices are not subject to the Code of Conduct for U.S. Judges, which has stricter standards, although some have agreed to voluntarily abide by the code. It’s up to the individual Supreme Court justice to decide if he should recuse himself from a case, and there is no mechanism for challenging that decision. This arrangement was evident most recently when Justice Antonin Scalia went duck hunting in 2004 with Vice President Dick Cheney while the court was considering whether the Bush administration should be required to release information about the private meetings of Cheney’s energy task force.
Scalia saw no need for recusal then. “If it is reasonable to think that a Supreme Court justice can be bought so cheap,” he said, “the nation is in deeper trouble than I had imagined.”
Roberts’ own history of dealing with potential conflicts of interest as a sitting justice is far from transparent. A request for his current list as an appellate court judge was denied by both Roberts’ office and the clerk’s office of the U.S. Court of Appeals for the District of Columbia Circuit. According to the clerk’s office spokesperson, information about recusals in the federal courts is traditionally not made public. Each judge submits a list to the clerk, and those lists are reviewed privately by the judges’ own clerks as part of the assignment process. At least two federal district courts voluntarily post recusal lists for their judges on their Web sites.
The spokesman at the clerk’s office said the court does not give out information about recusals unless a judge announces it or makes it public. Roberts did so recently in once instance, concerning the case of the American Bar Association v. the FCC. Presumably Roberts saw a potential conflict of interest in making a ruling on the bar association at the same time the group was conducting its standard evaluation of a nominee to the high court.
But another hint of Roberts’ narrow view of what constitutes a conflict of interest comes from a case he helped decide earlier this year, Hamdan v. Rumsfeld, regarding the Bush administration’s war on terrorism. Since the decision was handed down, Roberts has admitted that he was already discussing his possible nomination to the high court with Bush’s attorney general — six days before oral arguments in the case. And two and half months before Roberts took part in the Hamdan decision, he was interviewed by a group including Vice President Cheney, Karl Rove, Cheney’s chief of staff, Scooter Libby, Attorney General Alberto Gonzales, White House chief of staff Andy Card, and White House counsel Harriet Miers.
This unusual scenario — with Roberts presiding over a case critical to the Bush administration at the same time he was being recruited by it to serve on the nation’s highest bench — has some critics thinking of the Watergate era. Peter Young, a lawyer in the landmark Pentagon Papers case, has written for a <a href="legal blog comparing Roberts’ refusal to recuse himself from Hamdan with a similar refusal by Judge William M. Byrne Jr., whom the Nixon administration was actively recruiting, at the time of the Pentagon Papers case, to head the FBI.
Sierra Club senior attorney David Bookbinder, who was involved in the Cheney energy task force case and who filed an unsuccessful motion to prompt a Scalia recusal, says Roberts should have recused himself on the Hamdan case “in a New York minute,” since there were plenty of other judges who could have taken his place and helped the court avoid an appearance of impropriety. He worries that the case reveals Roberts’ insensitivity to the recusal issue. “As chief justice, he will be the justice most in the public eye,” says Bookbinder, “yet in a key example he avoided making sure there was no impropriety.”
Roberts has stated, “If confirmed, I would resolve any conflict of interest by looking to the letter and spirit of the Code of Conduct for United States Judges … I would recuse myself from any matter involving my former law firm or former clients for whom I did work, for the periods specified in the Judicial Conference Guidelines.”
“Periods specified” apparently means he can rule on any case involving former clients if he didn’t work on the case himself. Otherwise, there seems to be no timeline or specific set of criteria. Given Roberts’ career and investment history, will the Senate Judiciary Committee take that into account this week? The stakes are high: A justice who recuses himself from a case threatens the power of the Supreme Court by increasing the chances of a tie vote and therefore the possibility of a nonruling or a rehearing from the highest court in the land. But a justice who has reason and does not recuse him- or herself risks undermining the court in an even more drastic way.
Additional reporting by Andy Isaacson, Oriana Zill de Granados, and Will Evans.
Last year, when the Senate considered William G. Myers III for the U.S. Court of Appeals for the 9th Circuit, Democrats blocked his nomination with a filibuster after questions arose about his work as a lobbyist for mining and cattle interests. Sen. Charles Schumer, D-N.Y., described Myers’ environmental record as being “off the deep end,” and environmental and Native American groups opposed Myers for his criticism of laws such as the Endangered Species Act and his alleged disrespect for Indian lands and rights. On Tuesday, Myers’ nomination goes back before the Senate Judiciary Committee, the opening battle in Washington’s on-again partisan wars over President Bush’s judicial nominees. This time around, Myers has the full support of his friends in industry.
On Feb. 14 Bush renominated Myers and 19 other unsuccessful judicial candidates, seven of whom were blocked by Democrats in the last Congress, hoping that the four-seat Republican gain in the 2004 election would help push the nominees through. Myers is the test case. If Myers’ nomination is blocked again, the GOP leadership might resort to what is known as the “nuclear option,” whereby it would try to change the Senate’s procedural rules and ban filibusters. Senate Judiciary Committee chairman Arlen Specter, R-Pa., apparently believes that Myers has a good chance of reaching the 60 votes that would ensure a filibuster-proof Senate. Two Democrats voted with Republicans to try to end the first filibuster of Myers, and Colorado’s new Democratic senator, Ken Salazar, whose state went for Bush in 2004 and has big mining and cattle interests, has indicated he might vote for Myers.
To help Myers and the rest of Bush’s nominees get those votes in the Senate, Myers’ former clients in the National Association of Manufacturers plan to wage a multimillion-dollar campaign. The manufacturers hope to provide the critical boost the Republicans need by employing television advertising and grass-roots lobbying to pressure moderate or red-state Democratic senators to help prevent any filibusters. A spokesperson for the business group says that securing approval of Bush’s appellate court nominees is now its top priority. This unparalleled effort by big business to influence the judiciary by promoting nominees such as Myers who owe a great deal to the industry lobby raises potential conflict-of-interest questions and poses a new threat to the traditional independence of the judicial branch. And if the Democrats manage to filibuster Myers’ nomination again, the pressure on them by outside groups like NAM is only likely to increase.
NAM, the principal lobbying group representing U.S. companies, from multinationals to small manufacturers, is campaigning for Bush’s nominees because it believes that the biggest problem facing manufacturing in its race to compete in the global marketplace is non-production costs like tort litigation and regulatory compliance. It presumes that most of Bush’s nominees, if approved, would be inclined to stop what it considers frivolous lawsuits, whose costly litigation and awards, it says, are a drag on economic development and discourage job growth and risk taking. NAM president and CEO John Engler, a Republican and a longtime friend of Bush’s, says the NAM wants a “fair, impartial and predictable legal system,” with fewer delays and appeals.
To accomplish its goals on the national stage, NAM is promoting the package of litigation legislation endorsed by the White House, including the bill to curtail class-action lawsuits signed by the president on Feb. 18 (which will increase federal jurisdiction over such suits), as well as coming bills on asbestos litigation and medical malpractice, which aim to put caps on financial awards to those claiming damages. On the state level, NAM is backing sympathetic political and judicial candidates and trying to sway voters on the issues of frivolous lawsuits and costly verdicts. But NAM also has recognized that much of judges’ work concerns commercial and economic matters, and says that the confirmation of federal judges sympathetic to its goals is a “matter of utmost importance.” According to Engler, NAM’s membership believes that it is vital to confirm judges who “get it right” to replace those who “are negating the work of elected officials in the executive and legislative branches.”
NAM’s interest in judicial selection parallels the emergence of the courts as a principal battleground on the issue of government regulation. Business is no longer interested simply in educating judges to be more sympathetic to the cost of regulation on commerce but in selecting those already familiar with business through their prior connections. A study conducted by the Center for Investigative Reporting of all of Bush’s appellate court nominees in his first term revealed that a significant number had close ties to the energy and mining industries as lobbyists or counsel and that many, like Myers, were nominated for federal judicial districts where battles over natural resources are frequently fought in the courts.
NAM’s assessment of the importance of judicial selection was recently validated by an unlikely source. A study released last October by the Environmental Law Institute concluded that a federal judge’s political affiliation is a decisive factor in how he or she will rule on key environmental cases. It found that there is a wide gulf in the positions taken by appointees of Democratic and Republican presidents in environmental suits.
NAM’s lobbying campaign will focus on politically vulnerable or receptive Democratic senators. Five of the 16 Democrats up for reelection in 2006 come from states that went for Bush in last year’s election, and two of those previously voted with Republicans to stop some of the judicial filibusters in Bush’s first term. (One, Nebraska’s Sen. Ben Nelson, voted to end the filibuster against Myers.) All these senators are undoubtedly aware that fellow Democratic Sen. Tom Daschle’s support for the filibusters, particularly that of Myers — who is seen as a friend to agriculture because of his cattle industry connections — was an issue in his losing South Dakota campaign last year. His opponent John Thune, who ultimately defeated Daschle, charged that in voting on judicial nominations, Daschle had sided with liberal extremists against the state’s farmers and ranchers.
NAM’s rallying of corporate muscle around judicial nominations is not unprecedented. In 2002, C. Boyden Gray, counsel to the first President Bush from 1989 to 1993, established the Committee for Justice and a companion foundation and ran a grass-roots and ad campaign similar to that planned by NAM concerning blocked judicial nominees. The committee lists on its Web site the Democrats who have sometimes voted with Republicans to stop a judicial filibuster, along with the Democrats it considers the chief barriers to confirmation. The group credits its television ads with helping to defeat Texas Democratic senatorial candidate Ron Kirk in 2002 over his stand opposing Bush’s nominees. Business groups and Republican supporters have donated tens of thousands of tax-exempt dollars to the committee’s foundation. And one of the committee’s members is Engler, a former Michigan governor and now NAM’s chief executive.
Myers has never served on the bench. He was the Department of Interior’s top lawyer in 2001-03 and is currently a lawyer in Idaho with the same firm that employed him as a lobbyist for mining interests. He ran into organized opposition to his first nomination from environmental and Native American groups for actions he took at the Interior Department and as a lobbyist in the 1990s for the cattle and mining industries, which are major Republican donors. This time he will benefit from the membership on NAM’s executive committee of the president and CEO of Arch Coal. Myers’ lobbying of Congress in 2000 helped pave the way for Arch’s recent expansion of its federal coal leases despite the opposition of federal regulators and six state attorneys generals who considered the increase potentially anticompetitive and harmful to consumers.
One example of the potential negative impact that judges’ rulings favorable to business can have on consumers is a case highlighted last April in Salon. Representing Arch Coal and two other major coal producers, Myers helped push through the Coal Market Competition Act of 2000, which allowed the producers to expand their federal coal lease holdings. The Federal Trade Commission subsequently challenged a consolidation of Wyoming coal producers allowed under the new law, and was soon joined by attorneys general from six states that rely on power from plants fueled by Wyoming coal. They argued that combining the substantial federal coal leases would make anticompetitive coordination among the remaining Wyoming coal producers more likely and thus hurt consumers by increasing their electric utility costs.
“If allowed to go through, this merger would combine two of only four major producers of Powder River Basin coal,” Missouri attorney general Jay Nixon warned. But last August a U.S. district court judge nominated by President Bush denied the FTC’s request for a preliminary injunction, and the U.S. Court of Appeals for the District of Columbia Circuit then declined to issue a stay pending an appeal.
At the end of January, prior to organizing its initiative on federal judges, NAM launched the American Justice Partnership to push for legal changes in state courts and influence the selection of state judges and politicians. Its success with state judicial campaigns is what helped persuade the NAM’s Engler to develop a federal judicial strategy. Engler told a National Press Club audience on Feb. 10 that his interest in influencing the selection of federal judges came from his “assessment back in Michigan of how important the legal climate can be to a state and to a business climate, and therefore extrapolating that to the nation.”
Legal experts and the public have sharply criticized the growing involvement of special interests in state judicial elections. A 2003 poll for the New York state court system indicated “an alarming 83 percent of New York voters believe that campaign contributions have some or a great deal of influence on judges’ decisions.” Survey respondents also believed that political party leaders, campaign contributors and special-interest groups have the most influence over who becomes a judge. And Supreme Court Justices Anthony Kennedy and Stephen Breyer have voiced their concern about the trend that has leading business and Democratic supporters such as trial lawyers and unions pouring millions of dollars into state judicial races.
Underlining the worries about mixing justice with special interests, a committee headed by Breyer is reviewing the status of federal judicial ethics as provided for in a 1980 law that permits anyone to file a complaint alleging a federal judge has engaged in misconduct. But the committee’s report is not expected for several years.
Meanwhile, while waiting for his judicial fate to be decided, Myers practices law in Boise for Holland & Hart, which calls itself the largest law firm in the Rocky Mountain West. Its Web site touts its roster of nearly 300 lawyers, 49 of whom were selected for inclusion in the latest edition of “The Best Lawyers in America,” the “definitive guide to legal excellence in the United States.” Myers’ name, however, is not among them.
When President Bush nominated William G. Myers III to the 9th U.S. Circuit Court of Appeals in San Francisco in May 2003, judicial experience apparently wasn’t a factor in the choice. Myers has spent little time in the courtroom as a lawyer, and has never been a judge. Instead he made his name as a lobbyist for major Republican donors, especially in the coal industry. Despite that lack of experience, the Senate Judiciary Committee voted 10-9 to move Myers’ nomination to the full Senate on Thursday.
But a Federal Trade Commission decision to block a Wyoming coal consolidation that was made possible by a Myers lobbying blitz is shining a spotlight on the nominee’s corporate background, and raising new questions about whether the Bush White House is using the courts as another way to pay back the special interests from which it raises millions of dollars. Corporate interests have become increasingly involved in attempts to influence the outcome of state judicial elections, so developing sway with the federal judiciary seems a logical step. There is no doubt that confirming Myers would give big business a friend on the crucial 9th Circuit Court of Appeals.
Myers and his law firm earned hundreds of thousands of dollars representing the cattle and coal industries that are so important in Vice President Dick Cheney’s home state of Wyoming. The new 9th Circuit nominee lobbied successfully on behalf of the state’s three largest coal operators, Arch, Peabody and Kennecott, to pass legislation to significantly boost the amount of coal these companies mine on U.S. government land. The government controls coal leasing on federal land to promote market competition among coal producers and thereby control costs that utilities must pay to produce electricity from coal for consumers. The three Wyoming giants also happen to be the largest coal operators in the nation.
When Sen. Dianne Feinstein, D-Calif., asked Myers about his role in lobbying for the legislation, he pointed out that it passed with widespread support and was signed into law by President Clinton just weeks before the 2000 election. What Myers didn’t say is that the new legislation, known as the Coal Market Competition Act of 2000, helped pave the way for the proposed Arch-Triton consolidation, which the FTC has now ruled will weaken domestic competition in the coal industry, particularly in Wyoming, the so-called Saudi Arabia of coal.
Myers’ client Arch Coal, the nation’s second-largest coal producer, announced last year that it had reached agreement to purchase the seventh-largest producer, Triton. Consolidation in the coal industry was helped considerably by the higher coal-lease limits that are now allowed on federal land, thanks to Myers’ lobbying. Arch currently leases or has applied to lease nearly 40,000 acres of federal coal in Wyoming, while Triton has over 11,000 acres in that state. Arch’s acquisition of Triton would not have been possible under the pre-2000 rules that limited federal coal leases in any one state to 46,080 acres.
The proposed deal has been controversial even in the coal industry. One anonymous source told trade publication Coal Week last year, “I’m afraid that Arch purchasing Triton is going to get us into that oligopoly situation — and I just wonder if anybody’s going to fight it and complain to the Justice Department.” Covering the Arch-Triton deal, Platts Coal Outlook reported, “Many coal industry officials believe concentration of production would mean a shift in market power toward coal producers instead of consumers.” And a major electricity company that purchases Wyoming coal has voiced its concern to the government over the possible impact on coal prices for its coal-based generating plants. Arch Coal has vowed to appeal the FTC action in court. The head of Arch counters that “we continue to believe that this acquisition is pro-competitive and would create tremendous efficiencies that would benefit our customers and ultimately consumers of electricity.”
The deal received lengthy scrutiny at the Federal Trade Commission because of its anti-competitive implications. In announcing its 4-1 decision on Tuesday, the FTC found that “the acquisition would result in the top three competitors controlling 86 percent of 2003 coal production in (Wyoming’s key coal fields) and would substantially increase the possibility of, and harm from, coordinated interaction by these major players … (the FTC action) will protect electricity consumers from higher energy prices that would result from reduced competition in (Wyoming) coal, an important low-cost energy source for electric generators.” Almost all of Wyoming’s coal is used to produce electricity in the approximately 26 states where it is shipped.
The FTC review comes on the heels of a Justice Department investigation into possible anti-competitive practices in Wyoming coal production, an investigation reportedly triggered by allegations about Myers’ lobbying clients Arch, Peabody and Kennecott. (The lobbying disclosure forms that Myers’ law firm filed for these three coal producers also seem to indicate they were at least coordinating their political activities back then, as each indicates identical payments for different reporting periods in 1999 and 2000.)
Why would the Bush administration want to support Big Coal with a friendly judicial nominee who has been a lobbyist for the three largest U.S. coal producers? Bush White House political guru Karl Rove is no stranger to judicial politics. Rove, a former Texas tobacco lobbyist, ran the campaigns of several Texas Supreme Court judges, who must stand for election and raise money from special interests. The growing involvement of special interests in the election of state judges has been highly criticized by legal experts, and even Supreme Court justices Anthony Kennedy and Stephen Breyer have questioned the trend. Millions of dollars is being raised from the business community, as well as from trial lawyers and unions.
Last year, the Washington publication the Hill reported that Senate GOP conference chairman Rick Santorum, R-Penn., urged business lobbyists to get more involved in federal judicial nomination battles, stating, “It’s one of the most fundamental issues we have.” Business groups and Republican supporters have donated tens of thousands of secret dollars to the newly formed Committee for Justice, a partisan group headed by former Bush White House counsel C. Boyden Gray that has run ads attacking senators for opposing the administration’s judicial nominees.
The coal companies that Myers lobbied for, and the coal industry in general, routinely give substantial campaign contributions to congressional Republicans and the Republican Party. Peabody and Arch gave over a million dollars to congressional candidates during the 2002 election cycle, most of it to Republicans. The coal industry regularly has cases before the federal courts. Peabody Coal, for example, has two cases currently before the 9th Circuit.
Although the Senate Judiciary Committee approved the Myers nomination, Democrats may block a vote by the full Senate. President Bush can still prevail, at least during 2004, if he takes the opportunity to place Myers on the 9th Circuit with a recess appointment that bypasses the need for full Senate confirmation. A Senate recess is scheduled for April.
Ann McArthur contributed research to this report.
