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“So Much For The Fabric Of Freedom”: When Republicans Thought It Was Okay For Judicial Nominees To Have Opinions

Republicans on the Senate Judiciary Committee spent yesterday’s confirmation hearing on D.C. Circuit Court of Appeals nominee Nina Pillard harping on two points: first, that they think the D.C. Circuit doesn’t need its three vacancies filled, and second, that they think Pillard’s arguments as an academic mean she would disregard the law as a judge.

As it happens, when George W. Bush was the one nominating federal judges, the very same senators held the exact opposite view on both of these issues.

As People For the American Way has extensively shown, the argument that the D.C. Circuit doesn’t need judges holds no water – in fact, Bush nominees Thomas Griffith and John Roberts (now Chief Justice) were confirmed to the D.C. Circuit when each active judge’s caseload was significantly lower than it is today.

And Republican attacks on Pillard’s academic writings also directly contradict their previous statements on Bush nominees with academic records. As Pillard noted in her hearing, “Academics are paid to test the boundaries and look at the implications of things. As a judge, I would apply established law of the U.S. Supreme Court and the D.C. Circuit.”

Just a few years ago, Republican senators agreed. On the nomination of Tenth Circuit judge Michael McConnell, who took a number of far-right stands as an academic, including disagreeing with a Supreme Court decision declaring that a university ban on interracial dating constituted racial discrimination, Utah Sen. Orrin Hatch said, “The diversity of backgrounds and points of view are often the stitches holding together the fabric of our freedoms.”

“Surely, we can’t vote for or against a nominee on whether they agree with us on any number of a host of moral and religious issues, ” Alabama Sen. Jeff Sessions said of Eleventh Circuit nominee William Pryor, a far-right culture warrior who was outspoken in opposition to gay rights, women’s rights and the separation of church and state.

Then-Sen. Jim Demint defended D.C. Circuit Judge Janice Rogers Brown, one of the most outspoken conservative ideologues on the federal bench today, by saying, “A person with strong beliefs and personal convictions should not be barred from being a judge. In fact, I would rather have an honest liberal serve as a judge than one who has been neutered by fear of public opinion.”

And before the Senate confirmed Arkansas District Court Judge J. Leon Holmes, who used Todd Akin’s line about pregnancy from rape before Todd Akin did, Hatch told concerned colleagues,  “This man is a very religious man who has made it more than clear that he will abide by the law even when he differs with it.”

These Bush nominees held positions that were clearly far out of the mainstream, yet Senate Republicans demanded and got yes-or-no confirmation votes on them, helping Bush to shift the federal judiciary far to the right.

What some Judiciary Committee Republicans objected to at yesterday’s hearings is what they apparently see as Pillard’s excessive support for women’s equality, both as an attorney and an academic. Pillard won the Supreme Court case opening the Virginia Military Institute to women and worked with Bush administration officials to successfully defend the Family and Medical Leave Act.  She has strongly defended reproductive rights and criticized abstinence-only education that sends different messages to boys and girls. It’s this record that  her Republican opponents have distorted beyond recognition.

By any measure, Pillard is well within the mainstream, and has made it very clear that she understands that the role of a judge is to apply existing law regardless of one’s personal views. But while Senate Republicans made plenty of excuses for Bush nominees who were far outside the mainstream, they are accusing Pillard of being just too much of a women’s rights supporter to fairly apply the law.

 

By: Miranda Blue, Right Wing Watch, July 25, 2013

July 26, 2013 Posted by | Republicans, Senate | , , , , , , , | Leave a comment

“Make Peace With God”: Embattled Federal Judge Called For Texas To Execute 8 To 12 Times As Many Inmates Per Year

According to a complaint filed last week against federal appellate Judge Edith Jones, Jones suggested that African-Americans and Hispanics are predisposed towards violent crime and that the death penalty is a public service because it allows inmates to “make peace with God.” Should these allegations against Judge Jones be proven, they will be only the latest examples of a career’s worth of nonchalance regarding executions. Indeed, as far back as 1990, a much younger Jones proposed a series of reforms to Texas’ execution procedures that would have increased that state’s execution rate by as much as twelve times.

In an article for the Texas Bar Journal entitled “Death Penalty Procedures: A Proposal for Reform,” which is available through the legal research service HeinOnline, Jones decries a capital punishment system in Texas which she views as too inefficient, in large part because judges delay executions by taking time to review death sentences to determine that they were lawfully handed down. Indeed, at one point Jones blames the slow rate of executions on “the frequent, human reaction of most judges . . . to defer a decision if any element of a case raises doubts, or to grant a temporary stay for further consideration.”

To speed along Texas’ ability to kill death row inmates, Jones proposes that Texas schedule “four to six executions per month, commencing six months to one year from the date” those execution dates are made public. Notably, in the five years prior to when Jones wrote this piece, Texas executed an average of just under six inmates per year, so the immediate impact of her proposal would have been to multiply the state’s execution rate eight to twelvefold.

It’s also worth noting that Texas’ execution rate did spike significantly in the years after Jones wrote this piece. Most significantly, during the four years after Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, which limited the ability of death row inmates to challenge their sentences in federal court, Texas executed an average of 33 people per year. Nevertheless, in the modern era of American death penalty law, Texas has never executed the 48 to 72 people per year suggested by Jones’ piece. The deadliest year for Texas inmates was 2000, when 40 people were executed. 15 people were executed last year. Nevertheless, Jones concludes her list of proposals for expediting Texas’ executions by suggesting they could be viewed as “too lenient” because they would “take more than four years to conclude all the currently pending capital cases.”

A decade after publishing this proposal, Jones joined two opinions claiming that a man whose attorney slept through much of his trial could nonetheless be executed.

Even without Jones’ proposal for a wave of executions, Texas has a higher execution rate than any other state. More than one third of all U.S. executions took place in Texas since 1976, when the Supreme Court announced the modern constitutional regime governing death penalty cases.

 

By: Ian Millhiser, Think Progress, June 10, 2013

June 12, 2013 Posted by | Death Penalty, Federal Courts | , , , , , , , | Leave a comment

   

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