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Published in Print: March 5, 2003, as Education Community Has Stake In Bush Judge Choices

Education Community Has Stake In Bush Judge Choices

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For months now, political discussions in the nation's capital have been dominated by talk of potential war with Iraq. But at a distance somewhat removed from that debate, one of Washington's more established political fault lines is quivering.

The issue is nominations to the federal courts. President Bush in his two-plus years in office has tended to pick fairly conservative candidates for the federal district and appeals courts. With Democrats in control of the Senate for much of his first two years in office, not all of Mr. Bush's nominees won confirmation.

But with the Senate back in Republican control after last fall's elections, Mr. Bush has resubmitted some controversial names and appears unwilling to back down from a strategy of appointing right-leaning judges.

Just what stake does the education community have in the debate over judicial selection and the makeup of the federal judiciary? A potentially big one, say several legal experts and activists.

"The federal courts have had an enormous influence over the last 30 years in many issues related to education, including desegregation, church-state separation, civil rights, you name it," said Elliot M. Mincberg, the legal and education director of People for the American Way, a liberal civil liberties group here. "Therefore, the question of who becomes a federal judge matters a lot to education."

William H. Clune, a law professor and education policy analyst at the University of Wisconsin-Madison, said that when he taught constitutional law, his colleagues and students closely analyzed U.S. Supreme Court justices for clues on how they might rule. Now, almost as much attention is devoted to the 13 federal courts of appeals because of the relatively few cases the high court resolves.

"Anyone who follows the nitty-gritty of education law should be interested in the nominations to the circuit courts," Mr. Clune said.

Political Capital

A generation or two ago, the federal courts were widely viewed as a place for liberal activists to turn to pursue justice in areas such as desegregation, civil rights of students and school employees, and upholding a high wall of separation between church and state.

But with 12 years of conservative nominees from Presidents Ronald Reagan and George H.W. Bush, the courts took a clear turn to the right. For various reasons, President Clinton's eight-year tenure did not result in a dramatic swing back to the left, observers say.

"President Clinton had either a lack of willingness to expend political capital on it or a lack of interest, but, generally speaking, he did not seek to appoint progressives to the bench," said Louis M. Bograd, the legal director of the Alliance for Justice, a liberal group here that has lobbied against many of the current President Bush's judicial nominations.

Of course, the question of whether the current trends in judicial nominations are good or bad depends on one's political and ideological perspective.

"When the world was young, and so was I, the federal courts were our heroes," said David L. Kirp, a professor of public policy at the University of California, Berkeley. He is the co-author of a widely used education-law textbook.

"Advocates for poor kids and minority kids used the federal courts as an end run around the political process," Mr. Kirp added.

That was exactly the problem with an "activist" judiciary, said Thomas Jipping, the director of the judicial-appointments project at Concerned Women for America, a conservative group in Washington.

Liberals "believe judges can deliver the goods just as well as legislatures," Mr. Jipping said. "But it makes a great deal of difference if education policy is decided by legislatures or by courts. If the courts do it, we have no freedom."

Among the more high-profile nominees of President Bush to face opposition from the left are Miguel Estrada and John G. Roberts Jr., nominees to the U.S. Court of Appeals for the District of Columbia Circuit; Jeffrey S. Sutton, named to the U.S. Court of Appeals for the 6th Circuit, in Cincinnati; and Charles W. Pickering Sr., nominated to the U.S. Court of Appeals for the 11th Circuit, in Atlanta.

The fight over Mr. Estrada has intensified in recent weeks as Senate Democrats blocked a vote on his nomination with what amounts to a filibuster. President Bush does not yet have the 60 votes needed to bring the nomination to a final vote on the Senate floor, but he was not prepared to give up as of late last week.

Mr. Sutton once helped defend the Cleveland school voucher program. And he has raised hackles among liberals for what they see as his lack of sympathy for the rights of people with disabilities.

Much interest-group lobbying is devoted to appeals court nominees, because federal district judges don't have as much influence on establishing legal precedents, and thus fewer ideological considerations go into their appointments. And some court-watchers see the appellate-nominee battles as, in effect, a dress rehearsal for the drama sure to flow with the next Supreme Court opening.

"I hesitate to call these [appeals court fights] tune-ups for Supreme Court nominations," said Mr. Bograd of the Alliance for Justice. "I think these are equally important."

Most experts agree that because federal judges are appointed for life, one of the most lasting effects of any presidency is judicial appointments.

Of the 179 authorized judgeships in the federal courts of appeals, one seat each remains occupied by nominees of Presidents Nixon and Ford, 10 from President Carter, 33 from President Reagan, 31 from the first President Bush, and 61 from President Clinton, according to the Alliance for Justice. President Bush has won confirmation of 17 appeals court judges, and 25 vacancies remain.

Perry A. Zirkel, a professor of law and education at Lehigh University in Bethlehem, Pa., has studied data on federal education cases. Special education takes more than its share of the federal docket, he said, owing to the right to judicial review guaranteed by the Individuals with Disabilities Education Act.

But those cases tend not to be ideologically driven. Many other education issues that end up in the federal courts are more divisive, such as school prayer, affirmative action, and student discipline.

One of the most widely discussed appeals court opinions recently was last year's ruling from the U.S. Court of Appeals for the 9th Circuit, in San Francisco, barring public schools from leading students in the Pledge of Allegiance because of the words "under God." The ruling by a three- judge panel of the court remains in limbo as the full 9th Circuit decides whether to re-examine the case.

The 9th Circuit court has a reputation as the most liberal appeals court. Some analysts say that view isn't completely on target, but the Supreme Court overturns 9th Circuit rulings at a rate higher than that for other circuit courts. The appellate court currently has four vacancies for Mr. Bush to fill.

Other federal appeals courts, notably the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., and the U.S. Court of Appeals for the 5th Circuit, in New Orleans, have conservative reputations. In the area of education, the 5th Circuit court has ruled in recent years against affirmative action in college admissions and in favor of student-led prayers at school activities.

Many school administrators might not mind seeing a string of conservatives appointed to the bench, since judges of that persuasion tend to rule in favor of the power of government—and government includes school boards and their officials. But, again, it is a matter of perspective.

Deborah L. Cook, whose nomination to the 6th Circuit court is pending in the Senate, has attracted opposition from liberal groups based on her record as a supreme court justice in Ohio. She often voted against civil rights plaintiffs and others challenging government authority.

By the same token, she voted in favor of state government several times against a group of poor Ohio districts in a long-running school finance case.

Vol. 22, Issue 25, Page 8

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