Let's start with the punchline for this column -- call the Senate switchboard and tell any Democrat or moderate Republican (and yeah, there's a couple of them) to prepare to filibuster the hard right judicial nominees Bush is about to send their way. The switchboard number is 202-224-3121. Use it.
The word is out on Bush's likely judicial nominations and, having been selected for the presidency by a rightwing judiciary, Dubya looks to be returning the favor in a host of Federalist Society-approved choices for appellate judgeships. For those not familiar with the Federalists, they are Ken Starr's and Robert Bork's personal legal club. Now that the American Bar Association has been kicked to the curb on reviewing judicial nominees, the Federalists are now dominating the judicial selection process.
Near the top of the Federalists' wish list is Jeffrey Sutton, currently a partner at Day Jones, but at a young age already something of a conservative Zelig, a rightwing Forrest Gump, a lawyer who seems in the last decade to have been right there wherever civil rights were being rolled back.
This guy has been on the forefront of constitutional assaults on discrimination laws, striking down federal legislation in the name of "states rights", defending corporate abuse of the legal system, denying prisoners appeal rights, and expanding the drug war.
When the Supreme Court ruled last month that states could not be sued under the American with Disabilities Act, it was Sutton who represented the state of Alabama before the Court. And when women lost the right to sue under the Violence Against Women Act last year, Sutton had filed an amicus brief for Alabama arguing that the state's long respected tradition of defending civil rights meant the federal government should be barred from a role in defending women against sexual violence.
The ruling in the ADA case was based on last year's Kimel case, when federal lawsuits against states based on age discrimination were barred by the Supreme Court. Sure enough, Sutton represented the defendant state of Florida in that case as well. Even earlier in the decade, when the Supreme Court made its first major foray in restricting Congress's power to restrict discrimination -- when it struck down the Religious Freedom Restoration Act -- Sutton was there filing briefs to the Court on behalf of a coalition of states.
Lest anyone let Sutton get away with the rhetoric that he is just interested in "states' rights," not conservative opposition to civil rights, just check out Sutton's private work on behalf of Wal-Mart, where he argued (unsuccessfully in that case) that independent contractors were not protected under the Civil Rights Act. Of course, that was just when he wasn't publicly whitewashing the multi-million dollar sanctions against Wal-Mart for its illegal withholding of evidence.
Of course, no conservative lawyer would be worth his salt if he was not adding to the two million prisoners in our jails. In 1998, Sutton argued successfully to restrict prisoner's rights to appeal under the Anti-terrorism and Effective Death Penalty Act of 1996. And back when he was working in the Ohio Attorney Generals office, he vigorously prosecuted the drug war, including advocating the suspension of driver licenses for drug possession, even when no car was involved in the arrest.
Now, Sutton may not be the first nomination out of the gates, but the other rumored choices are just as rightwing, if not having quite the same spectacular paper trail.
Some progressive senators have vowed to fight these nominations but a number of others, including ranking Democratic Judiciary member Patrick Leahy, has been waffling on whether they are willing to filibuster nominees.
There were 42 votes against John Ashcroft for attorney general. We need to build the pressure on those senators to turn those votes into a commitment to filibuster nominees like Sutton. Now, we can't expect liberal nominees who will truly fight for justice, but we can expect moderate Republican lawyers willing to promise not to roll back basic rights. After the closest presidential election in American history, Bush has no mandate to control the third branch of our government. Bush may want to act like he has a landslide mandate, but Democrats should use the filibuster to make the "advise and consent" provision mean just that -- no judicial nominee will be approved without their consent.
Any judicial nominee who can't win the approval of the vast majority of the Senate should be sent back.
If the Dems can get some backbone early, the message may get through to Bush not to even bother sending the Suttons of the Federalist Society in the face of a certain filibuster.
So we need to be mobilizing to defeat and filibuster this nomination right away. Start calling that Senate switchboard NOW!
Nathan Newman of New Haven, Conn., a longtime union activist, is the Student National Vice President of the National Lawyers Guild, and author of the forthcoming book Net Loss on inequality in the Internet economy.