High Stakes, Low Courts

...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...

...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...

...No drugs, however, were found in Caycedo-Ortiz’s bag...

...But the majority amazingly disagreed, suggesting that Rabidue had voluntarily subjected herself to a work environment that generally mirrored society as a whole...

...She was rude and irascible...

...Her supervisors daily used the words “whore” and “tits” in her presence...

...If, as seems likely, 1992 turns out to be a record year for executions, the federal courts will in large measure be responsible...

...as an office manager at Florida’s Osceola Refining Company, she bickered constantly with coworkers and customers...

...The losers in this ideological battle are, of course, those who most need the protection of the courts: minorities, criminal defendants, and the downtrodden...

...The right 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...

...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...

...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 rights or labor lawyer...

...Given the fact that the Supreme Court is hearing 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...

...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...

...It would require a great deal of naivttt to believe that nominations to the bench are made without a thought to ideology...

...But the decisions at the next tier of the judiciarythe circuit courts of appeals-and the tier below that-the district courts-are, ideologically, the Supreme Court again and again...

...Even so, decisions like these often turn out to be short-lived victories...

...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...

...Their nominations ought to be given the same scrutiny as the Supreme Court...

...For example, says Memtt, who spearheaded the effort to have the Demjanjuk case reopened, “They find the incidence of discrimination to be far less prevalent...

...One example is a 1989 case brought by high school student Dean Poling against the administrators of his Tennessee high school...

...many liberal rulings are eventually overturned as they slowly work their way up through the courts...

...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 rantless search of a mobile home that was attached to utility lines and parked in a residential driveway...

...Rabidue, who was fired for being a troublesome employee, sued for sexual harassment...

...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...

...It’s the most complete makeover of the federal courts since FDR...

...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...

...A Ninth Circuit panel had no qualms about the warsearch warrant to examine his home...

...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...

...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...

...No good, she said, because such a statement would give him an unfair advantage over the other candidates...

...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...

...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...

...After all, activism is precisely what Reagan and Bush judges were supposed to eschew...

...In a 1990 decision, Ninth Circuit Judge William Canby Jr.’s dissent-you guessed it, he’s a Carter appointeeobserved flatly that the sanctioned discrimination against homosexuals is “wrong and it will have tragic results...

...Still, Caycedo-Ortiz was arrested along with the other occupants of the house on drug-related charges...

...Carter appointees, according to one 1987 study, were twice as likely as Reagan appointees to support civil rights claims, and Reagan appointees were four times more likely than Carter judges to deny standing to “underdog” plaintiffs suing corporate or government defendants...

...Our nation’s attentionif not its conscience-was aroused by the feisty public battles waged at the confirmation hearings of Robert Bork and Clarence Thomas...

...And an earlier...

...High Stakes, Low Courts Forget the Supremes...

...unnecessarily hurting the feelings of others surely has a place in any high school curriculum...

...Even in his confirmation hearing before the full committee, Ryskamp defended his membership to a Florida country club accused of excluding blacks and Jews...

...Congress, state courts, and legislatures are increasingly called upon to assume the role of protector once played by the federal courts...

...Exactly two of 115 Reagan-Bush appointees to the appellate courts are black...

...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...

...They were mostly male and my age, 39,” she said later...

...In Carnes’ case, the politics behind his appointment weren’t all Republican: Alabama Democrat Senator Howell Heflin was his leading sponsor...

...Discriminating tastes The question of how best to explain the sharp changes Reagan and Bush judges have wrought divides court watchers...

...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...

...Only worse...

...Caycedo-Ortiz had slept over the night before in a guest bedroom and had brought with him a small briefcase filled with personal items...

...But before doing so, candidates had to provide a draft of their remarks to a school guidance counselor, Barbara Ollis, for review...

...Judge Damon Keith, a Carter appointee, described Osceola as an “abusive, anti-female environment...

...Another obvious difference between appointments by Carter and those by the two Republican presidents who followed him reflects the fact that Carter valued diversity...

...It would be more rewarding if we could do more good for the country, like we used to...

...Consider the case of Vivienne Rabidue, who by all accounts was not a pleasant person to work with...

...The real threat to justice is the hundreds of conservative appointees to the lower federal courts by Tony Mauro cuit judges ordered a rehearing of the case of alleged Nazi executioner John Demjanjukwhose identification as Ivan the Terrible is now officially in doubt-again it was the work of Carter appointees...

...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...

...It also turned up packages of cocaine throughout the residence...

...Memtt’s point is not a minor one...

...An eleventh-grade honor student at Unicoi County High, Poling was on the ballot for class president in the spring student council elections...

...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...

...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 businessles...

...For Carter appointees like Reinhardt, it must be downright discouraging, let alone unrewarding, when defendants can’t even get their cases heard...

...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...

...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...

...Judge Gilbert Merritt, one of four Carter appointees on the Sixth Circuit now joined by 10 Reagan and Bush judges, adds, “I really do cherish my relations with my colleagues, but they certainly have a different point of view...

...Supreme irony If Bush is reelected, the answer to Clarke’s question is yes...

...In 1989, IRS agents p‘ainstakingly sifted through the garbage Massachusetts resident, piecing together shreds passive judge would feel of paper until they assembled enough evidense to obtain a with gusto and made leaps in interpretation no outside the home of a comfortable making...

...But the court ruled against Weinsheimer, saying ithat she was “equally proficient in the use of crude language,” and thus any abuse she suffered was not based on “sexual animus...

...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...

...Caycedo-Ortiz...

...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...

...One supervisor commented that Rabidue had a “fat ass,” adding that “all the bitch needs is a good lay...

...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 distiict operating under a court desegregation order...

...The rightward shift has, of course, been most visible on the Supreme Court...

...Since then, lower courts have gone beyond the Croson decision to erase a broad range of affinriative action programs -programs that even those who feel that set-asides need limits would question...

...Reagan and Bush have also tilted toward relatively young appointees, to ensure an impact well into the next century...

...But Poling and his parents took their case to court, claiming violation of the student’s First Amendment rights...

...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...

...Once inside, they pored through his records and came up with the grist they needed to nail him on charges of tax evasion...

...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...

...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...

...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...

...The negative impact of such rules is magnified, of course, for minorities...

...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...

...At the same time, the couirts’ swing to the right has scaled back minority rights in less stark but equally destructive ways, especially in the area of affirmative action...

...The court ruled that the defendant’s privacy had not been violated...

...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...

...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...

...In another Florida sexual hiirassment 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...

...You file a day late, your case is dismissed,” he says...

...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...

...Ollis 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...

...She was not permitted to take male clients to lunch for fear, her bosses said, that she might have car trouble on the road...

...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...

...My job now is to keep the torch lit...

...All 10 candidates were required to deliver a short speech before the entire school assembly prior to the election...

...And indeed they should...

...Likewise, the court has issued more unpublished opinions and cut oral argument time and the permitted length of briefs...

...The original intent of the law is also being skewed by recent conservative interpretations in privacy and searchandseizure cases, as in the case of drifter Oscar Eighth Circuit panel found no evidence of an illegal search when police followed a Reagan and Bush’s ‘‘nonmacfivist” judiciary woman into a restroom and watched her activihas attacked precedent ties in a stall through a - crack in the door...

...Blacks no longer trust the federal courts,” says Judge Stephen Reinhardt, a Ninth Circuit Carter appointee who favored a stay of execution for Harris...

...And they had a glazed look as if to say, what’s the problem with these guidelines...

...Of course, the numbers are just the beginning...

...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...

...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...

...Virtually every circuit cou~ot f appeals since has adopted the perverse logic of the Lyons case to dismiss brutality lawsuits...

...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...

...My job is now different...

...Or look at the resumt 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...

...He later defended himself by claiming that the police had no right to search him or his bag...

...But as the only female manager at the plant, she was also subjected to an unending barrage of demeaning remarks...

...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...

...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...

...Other school officials concurred, and Poling was forced to withdraw from the race...

...I thought to myself, ‘Oh my God, is this the rest of my professional life...

...They are no more or less activist, just activist in a different way...

...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...

...Twentytwo percent of Carter’s appointees were minorities...

...The schoolmarmish court disagreed, noting that the “art of stating one’s views without...

...On hand to discuss the problems that defendants have with federal sentencing guidelines, she saw before her a sea of white faces...

...Instead, the Reagan and Bush judiciary has attacked precedent with gusto and made leaps in interpretation no passive judge would feel comfortable making...

...One legal loophole the courts now commonl:y employ is a view of “standing” that makes police brutality suits harder than ever to bring...