"It's the Supreme Court, stupid!" It sure is - and the other federal courts, too. And anybody who thought this two-cowboy White House was going to appoint anyone to the bench who might further any of the Bill of Rights (the author had a glimmer of hope for a while) is correct only to the extent of the Second Amendment - which, thankfully, has never been interpreted to confer any rights on individuals. It is clear that W has thrown down the gauntlet.
A "cultural war" is on, says Justice Thomas. The appointment of John Ashcroft was the official renunciation of the Appomattox Treaty - the Digital Millennium's version of Fort Sumter. The amendments to our Constitution are to be mowed down one by one if W has anything to do with it. Well, given that both cowboys have a criminal history of driving while intoxicated, the 21st Amendment may be safe.
For those of you that have never lived in Texas (the author did - for fourteen, miserably humid years), a brief explanation of Texas culture is in order.
Texas culture all starts with the proposition that this is a Christian Republic. The whole purpose of the Bill of Rights was to make sure that the right kind of Christians could run the Country. The whole Constitution is subservient to the Ten Commandments, as indeed is our whole American government - or so they preach.
A weak central government - "state's rights," they call it - is necessary to facilitate local control by what Texans call "the good old boy network," which we'll call it the GOBN here. The GOBN works differently from government as you probably know it, and certainly at marked variance from anything you learned about in Political Science 301.
The GOBN meets for a couple of hours every Sunday morning to atone for the sins of Saturday night. That way, GOBN members all have a clean plate for whatever new sins are planned for the following week.
Membership in the GOBN includes a broad spectrum of Good Old Boys - butchers, bakers, candlestick makers, and more importantly, politicians and cops. The more influential GOBN butchers tend to be owners of meat-packing companies; the bakers tend to be high mucky-mucks in international baking conglomerates; and the candlestick makers have evolved into the vice presidents of the local power utilities.
The GOBN has a sort of caste system. Tier One, the influential GOBN, meets for lunch at the Downtown Club wearing Brooks Brothers suits and $3000 ostrich-skin boots. Tier Two, the rank-and-file GOBN, meets at the Tom Tom Bar and Grille and Semi-Private Club, wearing Levi's and $1000 leather boots.
Private clubs, incidentally, have a long heritage in Texas. Liquor by the drink was illegal there until 1972 - except in private clubs. GOBN private clubs had the advantage not only of booze, but also that of exclusive membership - Good Ol' Boys only. You probably can figure out real fast who didn't get in.
But the GOBN has been under fire of late. For example, Mothers Against Drunk Driving has made great inroads in the past 20 years or so into dismantling one of the most important institutional standards of the GOBN. Good Old Boys caught driving drunk could somehow get home without seeing the county jail on the way, although perhaps with a speeding ticket. The reason? You got it: Both the cop and the drunk driver enjoyed membership in good standing in the GOBN.
The post-Watergate press has razed another long-standing rule of the GOBN - news- media Good Old Boys never tattled on political Good Old Boys. GOBN members often could "fool around" with impunity.
Both White House cowboys enjoy long-standing membership in the GOBN, which is why the above explanation was a necessary prelude to this month's topic: The federal judiciary. Federal judges will be selected from the ranks of the Sunday morning wing of the GOBN.
As you likely recall, federal judges are appointed by the President, "with the advice and consent of the Senate." The "advice" component comes into play heavily with respect to the judges of federal trial courts. An institution called "senatorial courtesy" allows the ranking senator from the state where the judge is to be installed to feed nomination suggestions to the President. The "consent" component comes into play in the form of confirmation hearings after the nomination is sent to the Senate.
Confirmation hearings first take place in the Senate Judiciary Committee, where they take testimony, mostly from fans of the nominee. Many GOBN members will testify at these hearings. The nomination is then sent from the Committee to the full Senate. The press has been reminding you constantly of late that the Senate currently is 50-50, with Vice President Cheney holding the tie-breaker. You see what is coming, don't you?
Another component of the judicial nomination process is the American Bar Association's Standing Committee on the Federal Judiciary. A little background on that is necessary.
The American Bar Association, you may or may not know, is a volunteer organization of attorneys from around the country, its membership numbering over 400,000 - better than one-third of the practicing attorneys in the United States. All attorneys are said to be "members of the Bar," which means that they have been admitted to the Bar of a particular state. But after that, they can join the ABA, only if they want to (and pay the dues).
The ABA does a variety of things, mostly aimed at benefiting lawyers. "The ABA provides law school accreditation, continuing legal education, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public," it proclaims. It publishes a monthly magazine, books on various topics and continuing legal education materials for lawyers; it sponsors "Law Day" every year, conducts an annual convention every year, and does other things that trade organizations generally do. It also does things for the good of the legal profession in general, drafting model ethics rules and, in this instance, taking steps to promote a quality federal judiciary.
During the Eisenhower Administration, the ABA created its Standing Committee on the Federal Judiciary. What the Committee does - or at least has done for almost half a century - is to rate judicial nominees as "Well Qualified," "Qualified" or "Not Qualified." What was so important about the Committee's task is that it would privately supply this rating to the White House beforehand, so the President might think twice about nominating someone rated "Not Qualified" or be encouraged to nominate someone rated "Well Qualified." That procedure promoted what the ABA wanted: Judges who are both learned in the law and who are not cranky. That, in turn, makes the judicial system work better and makes attorneys' lives less unpleasant.
Presidents from both parties occasionally nominated judges despite a "Not Qualified" rating by the ABA, but not very often. This is particularly important at the level of trial judge (United States District Judge) because there are so many of them. The ABA can conduct a sort of peer review. For example, lawyers (the author included) who have tried a case before a judge being considered for the federal bench would receive a call from the ABA with a list of questions. Was the judge courteous? Efficient? Prepared? Did the judge know the law? The Committee evaluates the responses in light of the perspective of those polled. For example, it is a good mark when the lawyer that lost the case says that the judge was well-informed about the law. And if all of the lawyers on both sides of the case say that the judge lacked civility and was unprepared, that also is a significant signal.
This system has worked fine for many years with presidents from both parties. But shortly after his election, President W's White House Counsel announced that this administration would jettison the long-standing practice of supplying the Committee with names prior to nomination.
"The question is whether the ABA should play a unique, quasi-official role and then have its voice heard before and above all others," said W's right-hand lawyer, who probably is a member of the ABA. "We do not think that kind of preferential arrangement is either appropriate or fair." He went on to allow that the ABA was free to comment on judicial candidates after they are officially nominated, just like anyone else. Given that White House Counsel Alberto R. Gonzales was a member of the Supreme Court of Texas, likely he is aware that the First Amendment would allow the ABA to do that.
So what's the significance of W repudiating the ABA? Well, the Religious Right thinks that the ABA is too liberal. Come to think about it, the Religious Right probably thinks that any organization of well-educated people is too liberal. It has never been fond of the AMA either, and hates scientists - not to mention science. The ABA gave mixed reviews to Robert Bork and Clarence Thomas, they complain.
The bottom line here is that W thinks that Reverend John Ashcroft is far better suited to evaluate judicial candidates than the ABA, because the ABA is too liberal. Reverend Ashcroft, on the other hand, is not too conservative or too closely tied to the church, which supposedly is to be separated from the state. Right!
There presently are over 100 vacancies in the federal judiciary around the United States and many districts are clamoring for urgently needed judges to conduct the businesses of the courts - like trying cases. But W's determination to pack the courts with conservative judges started by withdrawing 62 judicial nominations of the Clinton Administration, including most notably Roger Gregory, whom Clinton had nominated and temporarily appointed to the very conservative Fourth Circuit Court of Appeals (covering Maryland, Virginia, West Virginia and the Carolinas). Both of Virginia's Republican Senators objected to W's action withdrawing his name, as did many others. Gregory's appointment broke the embarrassing Fourth Circuit tradition of having an all-Caucasian bench.
W's determination to appoint judges only after passing the Religious Right Litmus Test is very evident from the few nominations that he has released thus far. Figure on a blood bath in the 50-50 Senate and its Judiciary Committee, especially if - no, make that "when" - there is a Supreme Court vacancy!
Clyde DeWitt is a partner in the Los Angeles, California law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
