Senate Democrats

Progress For America Releases Misleading Ads on Extremist Nominees

***Ad Fact Check***

The conservative group Progress for America is releasing misleading advertisements in 15 states today, mischaracterizing the judicial records of Judges Janice Rogers Brown and Priscilla Owen. Progress for America is attempting to portray these two judges as sympathetic nominees caught in an unfair confirmation process. In fact, Judges Brown and Owen are considered out of the mainstream by their former colleagues. They are too extreme to win lifetime appointments to the federal bench.

Claim: Brown is “fair.”
Fact: Brown is the quintessential results-oriented, agenda-driven, “activist” judge. The California bar commission that reviewed her nomination to the California Supreme Court found her unqualified in part because of her “tendency to interject her political and philosophical views into her opinions.” These are views that have led her to conclude that New Deal protections for ordinary Americans — like social security, minimum wage laws and the 40-hour work week — are “the triumph of our socialist revolution.” [Speech to the Federalist Society, 4/20/00] She has claimed that senior citizens, “blithely cannibalize their grandchildren because they have a right to get as much “free” stuff as the political system will permit them to extract.” [Speech to the Institute of Justice, 8/12/00]

These views pervade her opinions, where, always in dissent, she has misconstrued or ignored precedent, defied legislative directives and criticized U.S. Supreme Court rulings in order to strike down or radically restrict worker and consumer protections, affordable housing laws, and civil rights safeguards.

Claim: Owen is “fair.”
Fact: Owen is also an “activist” judge, determined to reach results consistent with her personal and political views. Attorney General Alberto Gonzales, once her colleague on the Texas Supreme Court, openly accused her of “an unconscionable act of judicial activism” in one case. [In re Doe, 19 S.W.3d 346]

A recipient of substantial campaign contributions from corporations and corporate law firms, Owen reliably votes to throw out jury verdicts favoring workers and consumers against businesses and dismisses cases brought by workers for job-related injuries, discrimination and unfair employment practices. Even Gonzales and Sen. John Cornyn, also a former colleague, voted against her in worker and consumer cases. Her home-state newspapers (see below) have opposed her for having a “results-oriented streak” and for “pushing an agenda.”

Claim: Brown is “well qualified.”
Fact: Brown was twice rated Not Qualified for her current seat on the California Supreme Court by the California committee that rates nominees. For her current federal court nomination, the ABA gave her the lowest possible passing grade, with a bare majority rating her qualified and a substantial minority rating her not qualified. No one on the ABA gave her a well qualified rating.

Claim: Brown has support from her colleagues
Fact: (1) Brown is opposed every major African American organization, including the NAACP, NAACP-LDEF, Urban League, Congressional Black Caucus. (2) her colleagues have criticized her in different cases for:

· “imposing … [a] personal theory of political economy on the people of a democratic state” [San Remo Hotel v. City and County of San Francisco, 27 Cal. 4th 643];

· asserting “such an activist role for the courts” [Santa Monica Beach, Ltd. v. Superior Court, 19 Cal. 4th 9];

· “quarrel[ing]… not with our holding in this case, but with this court’s previous decision … and, even more fundamentally, with the Legislature itself” [Stevenson v. Superior Court, 16 Cal. 4th 880];

· “permit[ting] a court … to reweigh the policy choices that underlay a legislative or quasi-legislative classification or to reevaluate the efficacy of the legislative measure.” [Warden v. State Bar of California, 21 Cal. 4th 628];

· Being “less than even-handed” and advancing a “serious distortion of history” [Hi-Voltage Wire Works, Inc. v. City of San Jose, 24 Cal. 4th 537]

When Brown recently gave a speech claiming that “people of faith” were embroiled in a “war” against those trying to sever America from its religious roots, the Contra Costa Times stated: “One would expect this kind of inflammatory language from, say, a member of Islamic Jihad. But it’s pretty alarming coming from a candidate for a seat on one of the most powerful courts in the nation, often a stepping stone to the Supreme Court.” [Contra Costa Times, 4/29/05]

President Bush rejected these types of attack against people’s faith in his April 28th press conference.

Claim: Owen was endorsed by major newspapers
Fact: The ad is referring to endorsements for the Texas Supreme Court, not the Fifth Circuit. Her home state papers, the San Antonio News-Express and Houston Chronicle, both of which supported President Bush’s election in both 2000 and 2004, oppose Owen’s nomination to the Fifth Circuit. San Antonio News-Express found that “her record demonstrates a results-oriented streak that belies supporters’ claims that she strictly follows the law.” [San Antonio News-Express 7/21/02]

The Houston Chronicle concluded that Owen’s judicial record shows less interest in impartially interpreting the law than in pushing an agenda.” [The Houston Chronicle 5/12/03]

Claim: Owen has bipartisan support.
Fact: 46 of the 48 Democrats opposed Owen’s nomination in the 108th Congress as did Jim Jeffords. In the 107th Congress, she was rejected by the Judiciary Committee when she did not receive support from a single Democrat on that committee.

Claim: Democrats refused to allow a vote on Owen and Brown.
Fact: Owen and Brown received cloture votes (a total of 5 votes between them) in which all Senators had to put their position on the record. This is more consideration than was given to the over 60 Clinton nominees who were rejected without any floor votes, cloture or otherwise. Owen also received a committee vote in the 107th Congress and was rejected there.

Claim: Democrats are abusing the rules.
Fact: Senate rules have permitted filibusters and other means of blocking nominees for more than 200 years. Nominees of John Adams were blocked. Filibusters have repeatedly been attempted against judicial nominees.

Claim: Courts are empty, justice has been denied.
Fact: 208 of the 218 Bush judicial nominees to be considered on the Senate floor have been confirmed. Only 10 have been blocked. This means that 95% of Bush’s nominees who have had a vote on the Senate floor have been confirmed. The vacancy rate in the federal judiciary now stands at 44 out of 875, well below the Clinton years, when it was often well over 100. It has hovered around its lowest rate since the Reagan years, when the judiciary was much smaller. President Bush has failed to nominate anyone for 29 of the 45 current vacancies. 64% of the vacancies do not even have a nominee.

WHY CHECKS AND BALANCES ARE SO IMPORTANT: Our courts are the last bastion of fairness in America. They protect those that need protection most – our elderly, our children, our environment, minority populations, consumers and so many others. The few nominees that the Senate has rejected have shown an inability to be fair in protecting the constitutional rights and liberties of all Americans. They consistently come down on the side of corporate or business interests against average Americans. They rewrite history against our minority populations. They want to undo the social safety nets that make America great.

Republicans are abusing power to get people like the following onto the federal bench:

  • Janice Rogers Brown — wants to do away with the New Deal. Janice Rogers Brown, a California Supreme Court Justice nominated to the DC Circuit, is waging a war from the bench against America’s social safety net. She wants to undo the New Deal — including laws important to working Americans like the minimum wage — and take America back to the 19th century. Her poor record on civil rights has caused the nation’s top African American and civil rights leaders to oppose her nomination. According to Brown, government destroys families, takes property, is the cause of a “debased, debauched culture,” and threatens civilization. In an age discrimination case, she wrote a lone dissent against a fired 60-year-old employee, warning that the case could harm the “stability of the business community,” and contended that age discrimination “does not mark its victim with a stigma of inferiority,” unlike other forms of discrimination. [Stevenson v. Superior Court of Los Angeles County, 16 Cal. 4th 880 (Ca. 1997)] She has even said that senior citizens “cannibalize” their grandchildren by asking for society’s support in their old age. According to Janice Rogers Brown – speaking on April 24th at a church on “Justice Sunday” — there is a “war” on between religious people and the rest of America. Brown has been nominated to the D.C. Circuit Court of Appeals, widely regarded as the second most powerful court in America because it decides cases determining the fate of our most important protections for the environment and rights of workers and women — protections Brown has unequivocally denounced.
  • William Pryor — wants to politicize Supreme Court and roll back rights. William Pryor has sought to advance a radical agenda contrary to much of the Supreme Court’s rulings over the last forty years, arguing to cut back laws protecting against age and disability discrimination, enforcing voting rights, and ensuring family and medical leave. Pryor opposed the ADA claim of a disabled man who objected to crawling up the courthouse stairs to reach the courtroom, arguing that the disabled have no fundamental right to access public court proceedings. He’s even ridiculed the Supreme Court justices, calling them “nine octogenarian lawyers who happen to sit on the Supreme Court.” He has argued for the politicization of the Supreme Court saying he was pleased that Bush v. Gore was decided 5-4 so Bush would appreciate the importance of any potential Supreme Court pick and, “have no more appointments like Justice Souter … Please God, no more Souters.” Pryor’s nomination was also rushed through the Committee before an ethical investigation into his fund-raising activities for the Republican Attorney Generals Association could be completed. In a blatant end-run around the Senate, Bush installed Pryor on the 11th Circuit through a recess appointment that expires at the end of this session.
  • Priscilla Owen — engages in judicial activism and ignores the law to side with corporate interests. Priscilla Owen is a Texas Supreme Court Justice nominated to the Fifth Circuit. She was elected to the Texas Supreme Court with Karl Rove as a campaign consultant, and with donations from Enron and other large companies, and consistently rules against workers and consumers in cases against big business and corporate interests. She mis-read the law in an attempt to protect an insurance company that wrongly refused to cover a woman’s heart surgery, and a carmaker against a lawsuit by a teenager paralyzed in an accident. [Universe Life Insurance Co. v. Giles, 950 S.W.2d 48 (Tex. 1997) & Hyundai Motor Co v. Alvarado, 974 S.W.2d 1 (Tex. 1998)] Her colleagues on the conservative Texas Supreme Court have written that she legislates from the bench, including now-Attorney General Alberto Gonzales, who wrote that one of her opinions was an “unconscionable act of judicial activism.”
  • William Myers — anti-environmentalist who gave away Native American lands to mining companies. William Myers is the only judicial nominee EVER opposed by the National Congress of American Indians, which represents over 250 tribal governments, and the National Wildlife Federation. A long-time mining and cattle industry lobbyist, Myers has compared federal laws protecting the environment to “the tyrannical actions of King George” over the American colonies, called the California Desert Protection Act “an example of legislative hubris,” and denounced the environmental laws as ”regulatory excesses.” As an official in the Interior Department, he tried to give millions of dollars in public land to corporate interests and issued an opinion that cleared the way for mining on land sacred to Native Americans. He’s vehemently opposed by non-partisan Native American and environmental groups, including organizations that have never before opposed any a judicial nominee. He has been nominated to the Ninth Circuit Court of Appeals, a court with jurisdiction covering much of the West and which hears the highest number of cases determining the fate of national treasures.

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