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IN THIS ISSUE

Front Page

Ms. Paterson Goes to Washington

Statewide Coalition Forms to Keep Extremists Off the Federal Bench

Notes on the Right: Extraordinary Circumstances: The Assault on the Judiciary

Linking Progressive Corporate Law with Social Justice Movements: A "First of Its Kind" Conference

EJS Amicus Brief Charges Unlimited Campaign Spending
Unfair to Communities of Color and the Poor

The Big Money Behind Ward Connerly

Law Review Summaries: Affirmative Action

Staff/Board News and Notes

Newsletter Editors:
Elaine Elinson
Joe Lucero

Email Feedback

From Eva Paterson

Ms. Paterson Goes to Washington

Nuclear Option. Many of us baby boomers remember the Cold War and the overarching fear of nuclear weapons. We were taken aback when the conservatives in the United States Senate threatened to "go nuclear" with regard to the confirmation of nominees to the federal bench. The Equal Justice Society found itself right in the middle of this historically momentous power struggle. But first some background.

The Equal Justice Society was formed five years ago because African-Americans and others in our society obtained justice through decisions issued by federal judges. When the rest of society turned its back on dreams of equality, society's judges ruled that "separate but equal" offended the Constitution and could not remain a part of our nation's legal psyche. In the fifty-one years since Brown v Board of Education's promise of equality was shouted across this land, the federal courts have become increasingly hostile to the rights of people of color, the disabled, the environment, older Americans, and even the United States Congress.

The radical right of this country invoking the notion of "activist judges" has managed to make Lewis Powell's call for action (cited above), a bitter reality. This wing of the Republican Party as embodied by the appointees of Ronald Reagan and both George Bush I and II, has appointed more than half of all sitting federal judges.

EJS is been part of a wonderfully dynamic and diverse coalition, Californians for Fair and Independent Judges. [For more information on the Coalition, see the article by David Salniker in this issue.] The origins of CFIJ lay in efforts four years ago to oppose the confirmation of John Ashcroft as Attorney General. Activists up and down the state of California met with Senators Boxer and Feinstein to encourage them to oppose Mr. Ashcroft. Senator Boxer was the first US Senator to do so. Senator Feinstein opposed him as well. Over the past five years, we have opposed the most extreme nominees to the federal bench including Justice Janice Rogers Brown, Justice Priscilla Owens, Judge Charles Pickering, Judge Terrence Boyle, and Judge Caroline Kuhl. We did not oppose the vast majority of Bush nominees but focused on these particular individuals because of their extremist positions on the great issues of the day.

On Monday, May 16, I received a call from our friend and ally Ellen Buchman of the Leadership Conference on Civil Rights in Washington, D.C. She reported that the long awaited showdown on the nuclear option was coming to a head. It was anticipated that Senator Frist would force a floor vote on the continued viability of the filibuster as a tool for bridling the "tyranny of the majority" vis-à-vis federal judgeships. Democrats and Republicans alike had used the filibuster to stop the confirmation of judges viewed to be out of the judicial mainstream.

Ellen and her colleague Nancy Zirkin of the Leadership Conference along with Leslie Proll of the NAACP Legal Defense Fund thought it would be a good idea for an African American civil rights attorney to come to D.C. to talk about the opposition of many in the Black and civil rights communities to Justice Janice Rogers Brown of the California Supreme Court. They asked me to speak at a women's press conference called by women Members of Congress and leaders of national women's organizations. After consulting with friends, colleagues, and members of the EJS board, I decided to drop everything and get on a plane the next day to D.C.

I arrived in D.C. the next night and met with Leslie Proll to finish my statement for the press conference. On Tuesday morning, we headed to the LBJ Room in the Senate. The whole Senate is beautifully ornate and filled with historical resonance. We waited there for the elected officials with about 20 other women leaders.

The contingent of Senators and Congresswomen arrived. What a diverse group! Our own California Senator Barbara Boxer was joined by Senator Patty Murray of Washington. Representatives Solis and Capps from southern California were there, as well as Representatives Sheila Jackson Lee, Eddie Bernice Reagan and Rosa DeLauro.

Senator Boxer was the first speaker. You could have mistaken her for a trial lawyer as she laid out a very persuasive case against Justice Janice Rogers Brown. Boxer noted that despite the fact that there are six Republican justices on the California Supreme Court, Brown dissented more than any justice; in fact, she was the lone dissenter 33 times. Boxer gave example after example of reactionary decisions penned by Brown.

Next up was Senator Patty Murray who performed major surgery on the record of Justice Priscilla Owens. Most egregious in this list was the case involving a door-to-door vacuum cleaner salesman who raped a customer. Owens decided to let his parent company off the hook despite the fact that it knew he had committed a similar act earlier on another woman.

After Senator Murray spoke, Senator Boxer invited me to the microphone.

I addressed the harm that Justice Brown's rulings have had on women and people of color. Leslie said that heads were nodding when I told the story of damages being denied to a Black woman police officer who had been the victim of housing discrimination. The officer was accused of breaking in to an apartment when she was just looking for a place to rent. There were cheers after I spoke.

In the afternoon, we started our circuitous route around the Senate offices. Leslie, Amy Matsui, daughter-in-law of the late Robert Matsui, and I saw the staff of Senators Murkowski of Alaska, Hagel of Nebraska, Pryor of Arkansas, Feinstein of California, Mikulski of Maryland, and Conrad of North Dakota On our way to see Landrieu, Senator Barack Obama walked right by me. I did a back flip (according to my friends), shook his hand and told him I came from downstate Illinois.

We started Thursday morning at a meeting with an aide of Richard Lugar of Indiana. He told us that Lugar would vote with the Republican leadership on the nuclear option. We had already heard Lugar denounce the nuclear option on a Sunday talk show.

As we walked down the long hallway following a meeting with Democrats on the Senate Judiciary Committee, we saw see two women walking toward us with salads in their hands. One woman looked very familiar. It was Justice Janice Rogers Brown! My normal friendly manner urged me to say hello but I quickly thought "bad idea." I looked the other way and let her walk past me. She disappeared into an office that we later learned was VP Cheney's Senate dining room.

Next we met with an aide from the office of Senator Blanche Lincoln of Arkansas, a red state. The day before we had been told she was one of the Senators favoring a compromise. By Thursday, she was no longer part of that group. This shift should give you some idea of how fluid the situation is in D.C..

We next went visit Senator John Warner's office in the Russell Building that I learned is the most prestigious building to be in. We met with a young woman who told us that Warner had met earlier that day with Justice Brown and was "very impressed." We proceeded to tell her why we had problems with Justice Brown.

As luck would have it, Senator Frist and the Black evangelists were having a rally right outside the Russell building which started just as we were leaving Warner's office. Leslie Proll and Andrea Martin of the Leadership Conference decided we should check it out. It was frightening and infuriating. About 20 Black ministers talked about how wonderful Justice Brown was and how Democrats just did not want to support a Black woman. I wanted to scream but thought better of it. They talked glowingly of James Dobson as well as the Family Research Council. I was angry and appalled. Dobson and the Family Research Council are no friends of people of color. When the Black ministers talked, I looked at the crowd and noticed that in addition to a handful of Black folks watching, the majority of the people applauding were White.

Senator Frist then got up to tell lies about the Republicans and the filibuster. The speakers at the conference told more lies, claiming that people who opposed Justice Brown took that position because of her faith! As a fellow Black Christian, I was offended.

At the conclusion of their press conference, I approached the primary speaker to ask him if he thought all Christians had to feel the same way about judicial appointments. He said no but that the Bible said Christians could not differ on same sex marriages and that they are wrong. He then asked if I was a reporter. When I said no, he had no further interest in an exchange.

One of my colleagues was crestfallen. At the event, she had seen a Black classmate from law school who was very progressive on race issues. He was totally supportive of the homophobic message.

After we recovered from the Frist show, we next met with Senator Specter's top aide on judicial nominations - in the Senate Reception Room right off the floor of the Senate. He told us confidently that the compromise was going to be approved, which at the time seemed to be a strange prediction. He also took notes on our critique of Justice Brown's opinion. As counsel for the head of the Judiciary Committee, he and his staff read every one of her opinions.

Our last visit was with the legal counsel for Senator Bill Nelson of Florida. She is Black as was her assistant. This was the most relaxed meeting I had. They were very familiar with Justice Brown's opinions and had even read her speeches. They were most alarmed to find that the political and philosophical opinions expressed in her speeches found their way into her opinions.

I returned to the left coast the next day, delighted to no longer be in the belly of the political beast. During the next week, the moderates were able to reach a compromise, a deal. Although I do not believe Frist and his radical right wing confreres will refrain from attempting to invoke the nuclear option again if moderates of both parties threaten to filibuster an extremist nominee, I do believe that we dodged a big bullet -- or even a bomb. The worse possible outcome of this historic battle would have been the total elimination of the filibuster. That did not happen. In addition, a few -- though not all -- of the most extreme nominees will not be brought to the floor for a vote.

As a political science and history major, I was thrilled to be part of this fight. As President of EJS, I was delighted to be asked by our colleagues back East to come fight in the trenches with them. As most of you undoubtedly know, this was all a dress rehearsal for the "15 round heavyweight fight" that is coming this summer namely the epic battle over vacancies on the United States Supreme Court. EJS will be intimately involved with educating the public as to the stakes in this battle of the titans. Stay tuned.