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High stakes, low courts.

Forget the Supremes. The real threat to Justice ts the hundreds of conservative appointees to the lower federal courts

In the final desperate hours before California inmate Robert Alton Harris was put to death in April, 10 federal judges tried to have off the executioner. Working separately and in tandem, the judges of the Ninth Circuit U.S. Court of Appeals issued four distinct stays of execution--including one that came after Harris had been strapped into the gas chamber chair at 4 a.m. Each time, the weary justices of the Supreme Court rejected the stay until, at last, the court issued the unprecedented order to the Ninth Circuit to grant no more stays. Harris was executed.

What with the media attention heaped on the Supreme Court as a result of its decision, you'd be forgiven for forgetting that the Brethren were only the last in a long line of state and federal courts to decide that Robert Alton Harris should die. But that fact is worth keeping in mind. For while the Supreme Court serves as a lightning rod for liberal fear and loathing, an examination of the federal courts--and the verdicts and interpretations they hand down-- shows them to be more conservative than the Supreme Court.

That should come, in fact, as no surprise. Twelve years of Bush and Reagan have given us only a handful of conservative Supreme Court justices. But they've given us hundreds of federal court judges, and they're quietly but radically changing the law of the land.

In the Harris case, all but two of the ten judges who sided with Harris were appointed to the court by President Jimmy Carter. These days, when a federal judge bucks the conservative tide, chances are good that the judge is a Carter appointee. Carter judges have declared panhandling an activity protected by the First Amendment and ordered pay equity for males and females in jobs of comparable worth. And in June of this year, when a panel of Sixth Circuit judges ordered a reheating of the case of alleged Nazi executioner John Demjanjuk-- whose identification as Ivan the Terrible is now officially in doubt--again it was the work of Carter appointees.

Even so, decisions like these often turn out to be short-lived victories; many liberal rnlings are eventually overturned as they slowly work their way up through the courts. The rightward shift has, of course, been most visible on the Supreme Court. Our nation's attention-if not its conscience--was aroused by the feisty public battles waged at the confirmation heatings of Robert Bork and Clarence Thomas. And the high court's recent decisions on abortion, employment discrimination, and prisoners' rights, to name a few, have served to highlight the starboard list. But the decisions at the next tier of the judiciary-the circuit courts of appeals--and the tier below that--the district courts--are, ideologically, the Supreme Court again and again. Only worse.

The numbers paint a vivid picture: By the end of this summer, assuming that the Senate confirms a batch of pending judicial nominations, Reagan-Bush appointees will comprise a majority of the justices on all 12 federal circuit courts of appeals. It's the most complete makeover of the federal courts since FDR. Combined, Reagan and Bush have filled 534 of the 837 federal judgeships nationwide, and if Bush is reelected, by the end of his second term it's likely that 90 percent of the federal judiciary will have Bush or Reagan to thank for its job. But even without four more years of Bush, the future has been largely set: The altered landscape of the lower federal courts may constitute the conservatives' longest legacy and best revenge on the Democrats who control Congress and who may ultimately regain the White House.

Of course, the numbers are just the beginning. Lower court decisions that have piled up in recent years in areas from free speech to police brutality have often gone far beyond where the Supreme Court would dare to tread. If, as seems likely, 1992 turns out to be a record year for executions, the federal courts will in large measure be responsible.

The simple fact is that most legal issues never find their way to the Supreme Court, which means that the lower courts often have the final say. And when Congress acts to undo Supreme Court rulings--as it did with the hard-fought Civil Rights Act of 1991--those new laws return to the federal courts to be interpreted by the same judges whose views prompted the laws in the first place.

The losers in this ideological battle are, of course, those who most need the protection of the courts: minorities, criminal defendants, and the downtrodden. Congress, state courts, and legislatures are increasingly called upon to assume the role of protector once played by the federal courts. "Blacks no longer trust the federal courts," says Judge Stephen Reinhardt, a Ninth Circuit Carter appointee who favored a stay of execution for Harris. "My job is now different. My job now is to keep the torch lit. It would be more rewarding if we could do more good for the country, like we used to."

For Carter appointees like Reinhardt, it must be downright discouraging, let alone unrewarding, when defendants can't even get their cases heard. Since Reagan and Bush appointees began to dominate his court, Reinhardt says, it has become more and more likely for civil cases to be thrown out because of missed filing deadlines. "You file a day late, your case is dismissed," he says. Likewise, the court has issued more unpublished opinions and cut oral argument time and the permitted length of briefs. "I'm not saying all Bush appointees are for these things, and all Carter appointees are against them," explains Reinhardt, "but in the current climate, these kinds of measures are far more acceptable than they once were."

Judge Gilbert Merritt, one of four Carter appointees on the Sixth Circuit now joined by 10 Rea| gan and Bush judges, adds, "I really do cherish my relations with my colleagues, but they certainly have a different point of view." For example, says Merritt, who spearheaded the effort to have the Demjanjuk case reopened, "They find the incidence of discrimination to be far less prevalent. They are no more or less activist, just activist in a different way."

Merritt's point is not a minor one. After all, activism is precisely what Reagan and Bush judges were supposed to eschew. When Reagan officials boasted early on that they would foster a "sea change" in the direction of the courts, they spoke in terms of shaping a "non-activist" judiciary. Instead, the Reagan and Bush judiciary has attacked precedent with gusto and made leaps in interpretation no passive judge would feel comfortable making.

Court costs

When the Supreme Court in the 1989 Patterson case sharply limited the use of the Civil Rights Act of 1966 to remedy private workplace discrimination, lower courts followed its example by dismissing more than 300 pending claims and reversing a number of judgments already won by plaintiffs. Carter appointees, according to one 1987 study, were twice as likely as Reagan appointees to support civil fights claims, and Reagan appointees were four times more likely than Carter judges to deny standing to "underdog" plaintiffs suing corporate or government defendants.

Consider the case of Vivienne Rabidue, who by all accounts was not a pleasant person to work with. She was rude and irascible; as an office manager at Florida's Osceola Refining Company, she bickered constantly with coworkers and customers. But as the only female manager at the plant, she was also subjected to an unending barrage of demeaning remarks. Her supervisors daily used the words "whore" and "tits" in her presence. One supervisor commented that Rabidue had a "fat ass," adding that "all the bitch needs is a good lay." She was not permitted to take male clients to lunch for fear, her bosses said, that she might have car trouble on the road.

Rabidue, who was fired for being a troublesome employee, sued for sexual harassment. Judge Damon Keith, a Carter appointee, described Osceola as an "abusive, anti-female environment." But the majority amazingly disagreed, suggesting that Rabidue had voluntarily subjected herself to a work environment that generally mirrored society as a whole.

In another Florida sexual harassment case, Rockwell International worker Karen Weinsheimer testified that not only was she the target of frequent verbal abuse, but that in one incident, a male coworker exposed himself and placed his penis in her hand while she was looking away. But the court ruled against Weinsheimer, saying that she was "equally proficient in the use of crude language," and thus any abuse she suffered was not based on "sexual animus."

When victimized women have to struggle to have their dignity upheld, it should come as no surprise that the courts have shown even less compassion for defendants in police brutality cases. One legal loophole the courts now commonly employ is a view of "standing" that makes police brutality suits harder than ever to bring. In Los Angeles v. Lyons, a 1983 case involving the Los Angeles Police Department's use of illegal chokeholds, the Supreme Court said the plaintiff had no standing to sue for an injunction even though he suffered permanent larynx damage and blacked out because of the chokehold. The justices shut the courthouse doors on Lyons because he could not show that he was likely to be the victim of an illegal chokehold in the future.

Virtually every circuit court of appeals since has adopted the perverse logic of the Lyons case to dismiss brutality lawsuits. In an Eleventh Circuit case, three men injured by the canine unit of the West Palm Beach Police Department lost their case because they couldn't prove they would ever again be attacked by a police dog. The negative impact of such rules is magnified, of course, for minorities; few of us needed to watch the Rodney King beating to know that blacks are more likely than whites to suffer unjustly at the hands of police.

At the same time, the courts' swing to the right has scaled back minority rights in less stark but equally destructive ways, especially in the area of affirmative action. For instance, in the closely watched case of City of Richmond v. Croson (1989), the Supreme Court struck down the city's plan to require that a certain amount of contracting work be awarded to minority-owned businesses. Since then, lower courts have gone beyond the Croson decision to erase a broad range of affirmative action programs --programs that even those who feel that set-asides need limits would question. One example: A Texas court declared illegal a Beaumont high school plan to assign two black coaches to the varsity football team --a team that was 80 percent black and had never had a black coach, in a district operating under a court desegregation order.

Clarence Thomas, in an appeals court decision issued after he joined the Supreme Court, found that an FCC program to promote ownership of broadcast licenses by women was unconstitutional--even though a similar program aimed at boosting minority ownership had passed muster in the Supreme Court one year earlier. D.C. Court of Appeals Judge Abner Mikva, a Carter appointee, dissented, lamenting "the tendency of judges who are devoted to the original intention of the framers of the Constitution to ignore the original intentions of elected representatives in Congress."

The original intent of the law is also being skewed by recent conservative interpretations in privacy and searchand-seizure cases, as in the case of drifter Oscar Caycedo-Ortiz. The Colombian-born Caycedo-Ortiz, who immigrated to the United States in 1985, was staying at the house of friend Luis Rios in Miami in May 1987 when the police unexpectedly arrived at the door and began to search the house. Caycedo-Ortiz had slept over the night before in a guest bedroom and had brought with him a small briefcase filled with personal items. The police search showed the house to be a veritable cocaine factory, equipped with a hydraulic press, gallons of hexanes, acetone, hydrochloric acid, and drying lamps. It also turned up packages of cocaine throughout the residence. No drugs, however, were found in Caycedo-Ortiz's bag. Still, Caycedo-Ortiz was arrested along with the other occupants of the house on drug-related charges.

He later defended himself by claiming that the police had no right to search him or his bag. After all, he said, he was simply an invited guest who slept at the house for one night and whose privacy was guaranteed by the Fourteenth Amendment. But the court disagreed for several reasons, not the least of which was that he should have been aware that the house was filled with cocaine-making paraphernalia.

Rulings similar to the one against Caycedo-Ortiz have reappeared in various instances throughout the federal system, as judges have allowed warrantless searches of a house for sale, rented storage units, mobile homes, train roomettes, trash bags, and even film brought by a photographer to a store for developing. A Ninth Circuit panel had no qualms about the warrantless search of a mobile home that was attached to utility lines and parked in a residential driveway. When police decided to sneak up a driveway, hide in the bushes, and seize trash bags located well inside someone's property--all without a warrant--the Seventh Circuit said, in effect, "No problem." And an Eighth Circuit panel found no evidence of an illegal search when police followed a woman into a restroom and watched her activities in a stall through a crack in the door.

In 1989, IRS agents painstakingly sifted through the garbage outside the home of a Massachusetts resident, piecing together shreds of paper until they assembled enough evidence to obtain a search warrant to examine his home. Once inside, they pored through his records and came up with the grist they needed to nail him on charges of tax evasion. The court ruled that the defendant's privacy had not been violated.

The fight to sexual privacy, too, has been scaled back, with district and appeals court judges taking their cue from a 1985 Supreme Court ruling that upheld Georgia's anti-sodomy law, which legitimized a broad range of discriminatory acts toward homosexuals. In a 1990 decision, Ninth Circuit Judge William Canby Jr.'s dissent--you guessed it, he's a Carter appointee-observed flatly that the sanctioned discrimination against homosexuals is "wrong and it will have tragic results."

Taught police

The wholesale review of past legal doctrine has extended to the area of free speech, and has shown up in the form of clamps on student speech, symbolic speech, expression in public forums, and speech in which government funding is involved. One example is a 1989 case brought by high school student Dean Poling against the administrators of his Tennessee high school. An eleventh-grade honor student at Unicoi County High, Poling was on the ballot for class president in the spring student council elections. All 10 candidates were required to deliver a short speech before the entire school assembly prior to the election. But before doing so, candidates had to provide a draft of their remarks to a school guidance counselor, Barbara Oilis, for review. Oilis took one look at Poling's draft and balked at the line in which he suggested that the school administration had an "iron grip" on the school. No good, she said, because such a statement would give him an unfair advantage over the other candidates. Other school officials concurred, and Poling was forced to withdraw from the race. But Poling and his parents took their case to court, claiming violation of the student's First Amendment rights. The schoolmarmish court disagreed, noting that the "art of stating one's views without... unnecessarily hurting the feelings of others surely has a place in any high school curriculum."

Discriminating tastes

The question of how best to explain the sharp changes Reagan and Bush judges have wrought divides court watchers. Do the judges arrive with an agenda, or is it merely that they are cut from Republican cloth, with backgrounds that make them see cases differently from Carter appointees?

It would require a great deal of naivete to believe that nominations to the bench are made without a thought to ideology. Bush's judge-pickers, led by White House aide and former Scalia clerk Lee Liberman, "may not ask the potential nominee (yes or no, do you support abortion) but they know the answer," explains George Kassouf of the Alliance for Justice, which has led the fight against confirmation of some of the most conservative Reagan and Bush nominees. For evidence, we need look no further than Bush's unsuccessful 1991 nominee for the Eleventh Circuit, Kenneth Ryskamp, whose racially insensitive remarks continued through private interviews with Senate Judiciary Committee staff. Even in his confirmation hearing before the full committee, Ryskamp defended his membership to a Florida country club accused of excluding blacks and Jews.

Or look at the resume of Ed Carnes, a new Eleventh Circuit nominee, which features essentially one past accomplishment: administering Alabama's death penalty as an assistant state attorney general. (In Cames' case, the politics behind his appointment weren't all Republican: Alabama Democrat Senator Howell Heflin was his leading sponsor.)

But even in the unlikely event that an appointee comes to the bench agenda-free, his legal background --which these days is less and less likely to be in an area like civil rights law--can be enough to tilt his views. A judge who looks at a case from the experience of 20 years as a corporate lawyer may see it differently than a judge who has spent 20 years as a civil fights or labor lawyer.

Another obvious difference between appointments by Carter and those by the two Republican presidents who followed him reflects the fact that Carter valued diversity. Fully half of the blacks appointed to appeals court positions by Reagan and Bush now sit on the Supreme Court--an impressive statistic until you realize that that works out to one man. Exactly two of 115 Reagan-Bush appointees to the appellate courts are black. Although the percentage of minorities appointed by Bush to the lower federal courts has increased in the last two years, he still has a way to go to make up for his dismal 1989-1990 performance: 95 percent of his appointees were white men. Twenty-two percent of Carter's appointees were minorities.

Reagan and Bush have also tilted toward relatively young appointees, to ensure an impact well into the next century. So imbalanced are the federal courts these days in terms of race and age that a former federal public defender from San Diego, Judy Clarke, was shocked recently when she stepped to the podium at an orientation session to deliver a speech to new federal judges. On hand to discuss the problems that defendants have with federal sentencing guidelines, she saw before her a sea of white faces. "They were mostly male and my age, 39," she said later. "And they had a glazed look as if to say, what's the problem with these guidelines? I thought to myself, 'Oh my God, is this the rest of my professional life?'"

Supreme irony

If Bush is reelected, the answer to Clarke's question is yes. And that's why the composition of the courts should be a major issue in the campaigns for both the presidency and the Senate, where the power to confirm federal judges should, after the Thomas debacle, be taken a little more seriously. "Given the fact that the Supreme Court is heating far fewer cases than it used to, these [lower federal courts] are the courts of last resort," says Nan Aron, head of the Alliance for Justice. "Their nominations ought to be given the same scrutiny as the Supreme Court."

And indeed they should. Yet while presidential challengers Bill Clinton and Ross Perot join liberal senatorial hopefuls in lamenting police brutality, the sorry state of civil rights, urban decay, the environment, and the rest of the crises afflicting America, few have spoken out about the one issue that impacts them all: the makeup of the federal courts. After all, one thing about which we can be certain if we reelect Bush is that the federal judges he selects over the next four years will be making decisions about our lives and our country for a lot longer than Bush himself.
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Title Annotation:federal judiciary
Author:Mauro, Tony
Publication:Washington Monthly
Date:Jul 1, 1992
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