Welcome to the National Campaign to Restore Civil Rights Interview series, a regular examination of the court cases that shape and affect our lives.
As Elena Kagan assumes her role as Supreme Court Justice, the focus of advocates, attorneys and individuals returns to the confirmation of judges appointed to the federal trial and appeals courts. Appointees to these courts also subject to a confirmation vote by the Senate and 49 of the 85 judges appointed by President Obama are still waiting to be confirmed. These judges, some of whom have been waiting for more than one year, are caught in the middle of a fierce partisan battle between Democrats hoping to confirm these judges and Republicans seeking to obstruct, indefinitely delay and ultimately deny these highly qualified candidates from taking their seats on the federal bench.
To learn more about this issue, we spoke with two advocates working on judicial nominations. First is Nan Aron, President of Alliance for Justice.
PERRY: Why is the confirmation of federal judges important?
ARON: Confirmation of judges is an incredibly important area. First, unlike presidents who serve terms of four years, eight years, federal judges once confirmed sit on the courts for life. And therefore their power and influence extends way beyond the president that selects them. Because of this phenomenon and because of life tenure, judges, or the judiciary, which comprises the third branch of government, is that forum to which the underserved, those individuals that live at the margins, have an opportunity to present their cases knowing that a judge never has to run for re-election again, never has to please a president for an appointment, therefore that judge has the opportunity to render a decision free of political influence, free of the fear of knowing that what he or she does might come back to haunt them in a future election, and can make an independent, objective decision. So that’s one reason why confirmation of judges is so important. Secondly, at this particular moment in time, given that the other two branches of government, the executive and legislative, are quite beholden the special interests and large corporations, ordinary Americans have only the judiciary to appeal to for redress of their grievances and to provide solutions to difficult, thorny problems. We tend to think of a judiciary as free from special interests’ influence, or corporate influence, and while in fact we’ve seen in recent years those judges appointed to the bench coming from corporate backgrounds, most Americans like to think or tend to think that the courts are free from corporate domination, and therefore more open, more accessible to hearing their cases.
PERRY: How does this affect our everyday lives?
ARON: Judicial decisions are rendered on almost every conceivable issue that we can imagine. For instance, whether we have clean air to breathe, clean water to drink, whether we have a safe and humane workplace, whether individuals who work in corporations of government have civil rights -- all of these issues are decided by federal courts. Federal courts at this moment decide issues that affect every aspect of our lives, from the water we drink to the air we breathe, to whether our workplaces are safe. So almost everything we now do in America is determined by a federal judge. And we’ve seen so many important instances of decisions affecting what we do, for instance, a few years ago, the Supreme Court, in a very famous decision concerning the oil spill in the Exxon-Valdez case, reduced the damages to 32,000 native Alaskan small business owners by over 90%. We see that what the court did there will now affect the ability of tens of thousands and maybe hundreds of thousands of people on the Gulf Coast to get some kind of justice from the courts. We know the famous case of Lilly Ledbetter, a woman who learned decades after she had a job at Goodyear Tire & Rubber that she was being paid less than a man. She brought a case, the Supreme Court voted against her and Congress was so miffed by the Supreme Court’s decision that it actually overturned the case. If Congress had not taken that action, think of the individuals in our workplaces throughout America who would find it that much more difficult to stand up for their rights. So in so many ways what courts do are so important to our everyday lives.
PERRY: What criteria should the Senators be using to evaluate federal court nominees?
ARON: Senators obviously want to pick individuals who have an excellent record in the law, who are individuals of impeccable honesty, and who have a core commitment to constitutional rights, or said differently, have a demonstrated commitment to equal justice. Over the years, Republican presidents have tended to choose candidates who agree with the president’s political agenda. We saw, for instance, with the Bush administration, a propensity by the court-pickers in the White House to look for candidates who had very definite ideas on social issues, they looked for people who were opposed to abortion, opposed to civil rights, affirmative action, favored school prayer, and also made an effort to recruit individuals who represented large corporations throughout America. I’m glad to see that the current president is looking to appoint individuals who have experiences in public interest, in civil rights work, looking for individuals of diverse races and ethnic backgrounds to put on the federal bench. It’s particularly important now, given that so much of what Congress is doing, given the hardship and difficult economic times that people face that we put individuals on the bench who have a sensitivity to the rights and protections of ordinary Americans, and we’re beginning to see a switch in the kinds of people being nominated for these judges. We only wish the Republicans would cease their obstructionist tactics and confirm these individuals quickly.
PERRY: Is there anything we can do to affect this process?
ARON: I think the most important thing for individuals to do is to, in their own work, make the issue of the courts a priority. We know that this is an issue front and center to those in the ultra-conservative wing of the Republican party, and therefore the Senators talk about judgeships, they looks for specific kinds of people to become judges, they have a very political agenda when it comes to the judiciary. If progressives in this country made the judiciary more of a priority, if we wrote to our Senators about it, if we talked about the issue when elections come around and people are holding town hall meetings. If we pressed our politicians to focus more on the judiciary, I think we would have a much better opportunity to fill judicial vacancies with individuals who put justice ahead of politics, and would help ensure that those Americans in our society who lack the financial resources have a fair shake when they come before the courts and share their stories.
PERRY: Thank you so much for speaking with us today!
ARON: Sure.
Next we spoke with Debra Fitzpatrick, Interim Director of The Infinity Project.
PERRY: Why is the confirmation of federal judges important?
FITZPATRICK: Well, obviously the courts are an important avenue for people to receive justice and if we aren’t doing a good job of confirming federal judges then we don’t have adequate capacity to address the many issues and many concerns that people are bring to the court system. And so I know that the backlog of nominees is starting to have a really detrimental effect on the administration of justice throughout the country. And so I think that obviously making sure that the process is running smoothly is critical to making sure that we have adequate capacity to meet the needs.
PERRY: What are the broader effects and implications of this process?
FITZPATRICK: Well, obviously from our perspective, we’re very interested in a process that is bringing forward judicial nominees that represent the people of this country, and so we’re very interested in having a bench that reflects the people of this country and the people who are seeking justice before the bench or in the court system. And so in terms of the current nominees we actually feel like there has been a fair amount of progress made in terms of having nominees that look like the country. So we have a strong interest in making sure that those nominees get a fair hearing and are processed through the system in a way that is timely and efficient and beyond broader issues of having anybody fill those roles because we have a backlog of cases, there’s just the issue of making sure that people perceive the judiciary as a fair and impartial place where justice is done and we’re concerned that when the people wearing the robes do not look like the people seeking justice that we have some problems about the legitimacy of our court system. So we feel like the current administration has gone a long way in terms of addressing some of those issues in the federal courts, particularly in our area of interest, the gender diversity on the bench, we feel, that’s for example the federal district court nominees are fairly representative in that sense and so we’re just very eager to make sure that those nominees are given ‘their day in court’ in the judicial process and move ahead and we feel like those candidates are highly qualified on every measure. The diverse candidates that the Obama administration has put forward are high quality candidates and so it would be really unfortunate if we weren’t able to move forward and get those people on the bench and in place.
So, you know there’s a lot, I don’t know whether you wanted to get into this question, just importance of the bench and the judicial piece of our democracy, in terms of how that affects people’s lives, but obviously many, many critical decisions are made in our federal court system that affect the lives of everyday people and have broad ramifications for how lower courts and states and other entities within our system, both private and public, do business. And so, again, just going back to this point that that’s another we feel that it’s really, really critical for those people who are making those decisions to reflect the diversity of the people who are seeking justice. So, you know, I could trot out various examples of how having women and racial and ethnic and class diversity involved in those decision-making processes is critical, but I guess that there’s a large body of research documenting the various ways that diversity has an impact and another large body of research about implicit bias or unconscious bias and how that affects decisions that are made. And so we still it is really very critical that, since these decisions that are made by the court system have…do have broad impacts on people’s lives, everyday lives, that we want to make sure that the people that are making those decisions are coming from a variety of perspectives, various life experiences, that sort of thing.
PERRY: How should the Senators evaluate federal court nominees?
FITZPATRICK: Well, we feel that it’s important to have a really open, transparent process and so we’ve advocated for nomination commissions as a method for senators to decide who they’re going to bring forward. So there are different pieces of the process, obviously, there are sort of two parts of the process. One is, you know, senators have a very important role in recommending to the president who the nominees will be and then obviously the second part of that process is voting on whether to advance those nominees within other senator’s…that come from other senators districts. So, just speaking to the first part of that process, again, it’s really really critical that senators have a defensible and open process for determining which names are going to be put forward to the president. And, you know, historically it’s been a lot of sort of very mysterious process, often very driven by personal connection, somebody’s roommate in college…in many cases, diverse candidates have not had access to those kinds of relationships historically. So it’s kind of been a difficult thing for women or racial/ethnic minorities to crack into because they weren’t a college roommate of some male senator. And so what we have been trying to shed light on, to learn a lot more about these commission that senators have been setting up, trying to push again for those commissions to be diverse, to have diverse people involved in the commissions. Other pieces, the Brennan Center has done some really great work on state-level appointment processes and commissions, and one of the things we’ve learned from that process is that it makes a huge difference whether these kinds of commissions view themselves as recruiters, so whether or not they view themselves as…that their job is to make sure that the pool of people being considered for these important positions are diverse in the first place. And so that’s one of the things we’ve been pushing, is to have these commissions view their role as coming out against what the senators sort of say this is what I want you to do. So we’ve been working to help senators understand that if they want a diverse pool, a diverse list of people coming to them that they need to start back at square one and create a commission that’s diverse and also create a commission that views as its job to recruit a diverse pool of people to be considered. Obviously we want highly qualified women and ethnic minorities, we think there is a huge pool of these folks out there, so we just want to make sure that there’s a process that’s fair and equitable in terms of those highly qualified candidates being considered as part of the process. So that’s a piece. And so we think that obviously many of the criteria that have been…that are considered by the Senate, the Senate Judiciary Committee as well as the full Senate, we obviously think it’s important for judicial temperament, all the kind of common things for us, the real issue is whether highly qualified candidates based on those standards are getting before the senators. And again, for us we’re really concentrating on the front end of that process, to make sure that the candidates coming forward to the Senate for consideration include the highly qualified diverse candidates that we know are out there.
PERRY: Is there anything everyday people can do to affect this process?
FITZPATRICK: Well, I think that this is a political process and so I think that it’s really important for everyday people, voters, to make it clear to their senators that they support…in our case we’re working to create broad coalitions of people, men and women from all walks of life, not just the legal system who are basically saying, we’re paying attention to the kinds of nominees that you’re considering and the votes that you take on nominees. And in our case again we’re advocating that those folks be diverse, and so we advocate, we tell our supporters that again, which run the gamut from just a voter who cares about having a justice system that is equitable, to people involved in the legal system, to users of the legal system as well as those working in the legal system, so A to Z, to connect with the Senators to raise awareness in various settings about the importance of the judiciary. I think there’s a clear sense of how important the president is and how important their legislators are, members of the congressional delegation or their senators. But I think there’s less awareness about how the decision made at the Supreme Court, or in particular, decision made at the lower courts, how those decisions affect you. And so I think just having people aware of those kinds of key decisions that are examples of how, you know, here in Minnesota we look at the Citizens United case, and we’ve got Target here, so we’ve been kind of using that as an example to say, you know, this decision is affecting how Target interacts with our political system. So I think it’s finding those examples of how the decisions trickle down to everyday life. I think it’s just giving equal footing, psychologically and in action, to the decisions that are made about who’s being nominated and about the nomination process. I don’t think that a lot of people are necessarily aware of the kind of stalled…of what’s going on in terms of the current nominees and getting those through the process and the impact that has had on the courts’ ability to function effectively. So I think that just making it clear that people are unhappy with the gridlock, which I know they are and have probably expressed in a number of settings, but just continuing to do that. And I think, you know, I think just using whatever, the barbeque, whatever opportunities there are to be talking about what’s going on with the court system and how important it is in terms of various aspects of our lives but also public policy. The courts don’t make public policy, but they have very critical roles in terms of mediating all the many gray areas that come out of the way legislation is created and advanced. I think the role people can play not dissimilar from…they don’t have an opportunity to directly vote but they do have an opportunity to ask questions of the people they are voting for who have a role. So the senators…more indirectly, obviously, their congressional delegation. But Senators, just making critical an issue that’s raised in terms of how they think about the judiciary and how they think about various issues that the judiciary is considering and how important those issues are and so how important it is to have the right people involved on the bench. So there are a lot of organizations to get engaged in, ours is one, Alliance for Justice. So there are a lot of organizations people can get involved in terms of supporting those organizations…we don’t really take direct donations, we’re not that kind of an organization at this point but there are a lot who do and sort of connecting in with those folks, getting in on their list to understand where the pressure points are and where to…where there’s an avenue to have an impact, that’s critical. Again, generally getting the judiciary on their radar screen, and on the radar screen of other folks that they know, so there’s a variety of ways to do that and a variety of ways to connect but I think it’s giving that third leg of our democracy its due, I guess, in terms of the importance that we place on it.
PERRY: Thank you so much for speaking with us today!
FITZPATRICK: Okay, thanks!
The National Campaign to Restore Civil Rights is a collection of more than 100 civil rights organizations and numerous individuals who came together to ensure the courts protect and ensure justice, fairness and opportunity for everyone. The campaign focuses on public education and outreach, finding ways to get the message out about the impact of court rulings on our communities, our opportunities and our rights.