Bush steers court even further to right

September 20, 2002|By Susan Goering

SOUTH CAROLINA Sen. Strom Thurmond's long, checkered career may finally be coming to an end, but his legacy may be alive and well in Maryland for decades to come.

Senator Thurmond's former aide, Dennis Shedd, has been nominated by President Bush for a lifetime appointment to the extremely conservative 4th U.S. Circuit Court of Appeals, a position that dramatically impacts the people of Maryland.

The nomination of Judge Shedd, currently a federal trial court judge in South Carolina, raises grave concerns about the commitment of the federal judiciary, and Mr. Bush's nominees, to protect the hard-fought rights cherished by citizens. Rather than selecting thoughtful, moderate judges who strike an appropriate balance between ideological extremes, Mr. Bush has chosen in Judge Shedd someone who has demonstrated an outright hostility to large segments of our population, notably women, racial minorities, the disabled and the poor.

Although Judge Shedd is from South Carolina, his nomination directly affects Maryland because of the unique structure of our federal judicial system. Federal cases are first heard in federal trial court; federal trial court judges are organized by state (Maryland currently has 14). When cases from the federal trial court are appealed - a fundamental right in our judicial system - they go to federal appeals courts, which, unlike the trial courts, are organized into regions, or circuits. There are multiple states in each circuit.

This means appeals of Maryland cases are often heard by judges from the four other states in the 4th Circuit - West Virginia, Virginia, North Carolina and South Carolina. In fact, only two of the 11 judges on the 4th Circuit today are from Maryland. These judges have the final word on nearly all of the cases before them since the U.S. Supreme Court hears only about 80 cases each year from the entire country. Last year, the 4th Circuit alone handled more than 5,300 cases.

The 4th Circuit is significant not only for the states it covers, but also for its notorious distinction as the most conservative of the country's 12 circuits. Recent years have seen the U.S. Supreme Court reverse the 4th Circuit's attempts to roll back the famous Miranda decision, expose pregnant women to drug testing without consent and restrict judicial review for death penalty defendants.

The 4th Circuit also suffers from a long history of racial exclusion. Until recently, it was the sole remaining all-white circuit court in the nation, despite having the largest population of African-Americans of any circuit in the nation and a Latino population that tripled in the last decade. President Bill Clinton nominated four well-respected, moderate African-Americans to the circuit in the 1990s; none was granted a hearing.

Judge Shedd, if confirmed, would push this circuit even further to the right. His reported decisions display a remarkable insensitivity to principles the people of Maryland support and to the large minority populations within the 4th Circuit.

In nearly 12 years on the bench, Judge Shedd has dismissed all sexual harassment cases before him except one; dismissed scores of racial discrimination cases brought by African-Americans while allowing reverse discrimination cases brought by white men to go to trial; determined that a male supervisor who requested sexual favors from and inappropriately touched a female employee did not engage in outrageous conduct; struggled with letting a jury decide whether a manager's telling a female employee that he didn't want a "nigger" as his secretary was race-based discrimination; and, unbelievably, ordered the blind wife of a defendant not to use her cane in open court for fear of a sympathetic reaction from the jury.

Judge Shedd stepped beyond even the current Supreme Court's conservative view of congressional power, prompting that court to unanimously reverse his ruling and affirm a federal privacy law that prohibits state departments of motor vehicles from releasing individuals' personal information.

Unfortunately, Judge Shedd is just one person in a long list of Bush judicial nominees whose commitments to conservative judicial activism fly in the face of common sense and the Constitution.

The 4th Circuit for too long has disregarded the political convictions of the people of Maryland. The time has come for the Senate to restore balance to the 4th Circuit.

Susan Goering is the executive director of the ACLU of Maryland.

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