Bench Marks

Judicial activist Susan Lerner explains why she thinks we should care who presides over the Fifth Circuit Court of Appeals.



The Fifth Circuit Court of Appeals, located on Camp Street in downtown New Orleans, covers a territory that spans Texas, Mississippi and Louisiana. It's one of 13 circuit courts, which rank above the federal district courts and below the U.S. Supreme Court.

A few months ago, the Senate Judiciary Committee blocked President George W. Bush's pick to serve on the Fifth, Mississippi federal judge Charles Pickering, following a heated debate over Pickering's alleged historic ties to pro-segregation forces. Within the next few weeks, the committee is expected to vote on another Bush nomination to the Fifth: Texas Supreme Court Justice Priscilla Owen. Her nomination has become equally controversial.

Susan Lerner, founder and chair of The Committee for Judicial Independence, is leading a Los Angeles-based coalition of environmental, civil rights, feminist, and minority groups to oppose Owen's nomination. Lerner explains why her coalition is lobbying against the Owen nomination -- and why a Fifth Circuit judge even matters.

Q: Circuit courts seem so far removed from people on the street who most of the time are dealing with criminal or civil court. Tell me why circuit-court nominations matter.

A: It's pretty simple. Everybody knows that the Supreme Court is the final word on interpreting basic rights as they're guaranteed in the Constitution -- the right to assemble, freedom of speech, right to bear arms, separation of church and state. But the Supreme Court gets to pick and choose the cases that it hears. Currently, the Supreme Court only issues 75 to 80 decisions a year. Altogether, the 13 circuit courts decide somewhere around 30,000 cases a year. Of those thousands of decisions, only 75 are going to be reviewed by the Supreme Court.

So, for anyone who lives within the territory covered by the Fifth Circuit, it is, in essence, the final word -- on interpreting the U.S. Constitution, basic rights, whether the police can or cannot search you or stop you or go into your home.

The circuit courts -- not the Supreme Court -- also decide questions of whether federal statutes, such as the American Disabilities Act, are going to apply and how they're going to apply.

Q: Lately, the recent Pledge of Allegiance decision has been cited as one that showed the liberal overrepresentation on some courts.

A: First of all, the press has really misrepresented what the ruling was. The ruling doesn't say that the Pledge was unconstitutional. It says that one particular phrase -- which wasn't in the Pledge for the first 50 years it was used -- shouldn't be in there. The "under God" part was inserted by Congress in 1954 during the McCarthy era.

But more importantly, who does the Pledge of Allegiance really affect on a daily basis? Students. When was the last time you were asked to say the Pledge of Allegiance? It just doesn't have the same sort of daily impact as questions as to when police can stop you, search your car, or what your employment rights are if you're a breast-cancer patient.

Q: In the 1960s, the Fifth Circuit was celebrated for its civil-rights rulings. But the justices who made up the court then were conservative Republican judges. Wouldn't conservative judges today have the potential to make landmark rulings regardless of their politics?

A: No. There has been a very real sea-change in the way in which Republican presidents choose their judicial nominees. Rather than choosing a person who has a breadth of experience and a high degree of competence, they are choosing nominees who have a well-demonstrated, lifelong adherence to an ultra-conservative philosophy. They're looking for factors that guarantee how the nominee will rule. That's a very different way in which to choose judges.

Q: Have you seen the same shift in Democratic appointees?

A: No. In fact, Clinton began to appoint more and more moderates in an effort to get his appointments through [the Senate Judiciary Committee]. Bush has just dug in his heels and appointed more right-wing ideologues.

Q: What do people within the Fifth Circuit have to be concerned about if Priscilla Owen were to take the bench here?

A: Well, she has been a vocal opponent of abortion rights. And she is also very hostile to using juries. Wherever possible, she sought to curtail issues that would go before juries and [instead] put them before a judge. She's also been really, really hostile in terms of rights of individuals.

Q: People say that the courts are the way to take over the nation. What about checks and balances?

A: Even very conservative members of Congress know that it would be political suicide to repeal [statutes governing] reproductive and civil rights and clean air and clean water. But these advances can be rolled back in a less obvious way. The judiciary can declare legislation unconstitutional, trumping legislative action.

Q: Kim Gandy from the National Organization for Women visited New Orleans a few months ago and said, basically, that progressives should forget about the Fifth Circuit, because it was already lost. Is that true?

A: The Fifth and the Fourth are two very, very conservative circuits. And one nominee in isolation certainly isn't going to swing the balance on the circuit. But where you have nominees who are so extreme and so alarming from whatever circuit, I think that it's necessary to oppose them.

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