Via TBogg, we came across this: Judge Who Used Slurs May Be Impeached

"Two state lawmakers are seeking to impeach a judge who was videotaped using racial slurs and profanity while arraigning inmates. Rep. Ron Wilson said Tuesday that he and Rep. Harold Dutton, both Democrats, have asked the Texas Legislative Council to draft articles of impeachment against Judge Matt Zepeda."

"Zepeda, a Republican, has acknowledged he did wrong and apologized, but said he shouldn't be penalized for one mistake. He has vowed to fight efforts to remove him from his job."

"Black community leaders are supporting efforts to remove the Hispanic judge. A jail camera recorded Zepeda using obscene and abusive language to two prisoners in separate episodes during magistrate hearings this year."

TBogg, by the way, is a very funny blog and one we plan to read more often. We found him via Tapped and Ruminate This.

Lisa over at Ruminate This has the scoop on (and the text of) President Bush's not-so-nice letter to federal employees following the passage of the Homeland Security Act.

Nan Aron, President of Alliance for Justice, guest blogs for Eric Alterman today at Altercation on judicial nominations and the fate of the courts. Lots of information and we agree with her views. Here's a piece of Nan's column.

" At the end of the congressional session, all nominations are returned to the White House. We anticipate the president will make known his nominations for the next Congress early in the new year. With the Republicans at the helm in the Senate, it is likely that the process will be accelerated. But the standards for evaluating judicial nominees must remain high — no matter which party controls the process.

In light of the election results, there has been some speculation that the president will renominate those already defeated by the Committee. This would be an insult to the institution of the Senate, which has already performed its constitutional duty. The president has insisted he wants to work in a bipartisan fashion for the good of the country. The morning after the election, President Bush continued to reinforce his “uniter” message by saying, “I’ve talked to leaders of both parties and assured them I want to work with them.” We take him at his word; however, we will most certainly watch his deeds. To force the Senate to reconsider these nominees after it has done its work would be an ultimate politicization of the process.

The Alliance for Justice will continue to fight for cherished rights on behalf of the American people who do not want judges who favor big business against the interests of consumers and workers, who will restrict reproductive freedom, and who seek to roll back progress made in the areas of civil rights and environmental protection."

Nan also recommends Independent Judiciary.com

Instapundit (Law Professor Glenn Reynolds) has a new column up on FoxNews.com, Conservative Court Could Be Dems' Best Friend , co-written with Brannon Denning.

They posit that "Democrats might want to consider that a "conservative" U.S. Supreme Court with a renewed interest in limiting the power of Congress might be their new best friend." Two examples they cite are the Lopez decision, requiring an interstate commerce connection before allowing a federal sentence enhancement for using or carrying a gun during a drug crime or crime of violence, which requirement has since been extended to other crimes in federal court, and limits placed by the Court on congressional power through its holding that "Congress cannot commandeer state legislatures or state executive officials to pass or implement Congress’s mandates. If Congress wishes the states to do something, they must make it a matter of federal law (which prevails over conflicting state laws.)"

We agree with the Professor on the federalism issue, but we don't agree that democrats should believe that a conservative judiciary is supportive of their ideals. Taking them one at a time, first off, like Prof. Reynolds, we are definitely against the recent move by Congress towards mass federalization of crimes traditionally left to the states to decide how to prosecute. Here's why, from the Legislative Priority page of the National Association of Criminal Defense Lawyers:

NACDL urges Congress to reject its tendency to federalize crime and repeal legislation that is contrary to our system of federalism and sound crime control policy.

Increasingly, crime bills grant federal prosecutors greater and greater authority by creating more federal crimes out of historically state and local crimes. For example, domestic violence, carjacking and failure to pay child support, the subjects of recent federal measures, are traditionally the prerogative of state and local governments; federal jurisdiction is unwarranted, unwise and contrary to the Constitution. Regarding these and other federalized crimes, Chief Justice William H. Rehnquist observed that "one senses from the context in which they were enacted that the question of whether the states were doing an adequate job in this particular area was never seriously asked."

Before enacting federal criminal legislation, Congress should consider whether a federal interest is implicated and whether the state or local remedy is shown to be inadequate to address that interest. The impact on federal law enforcement and court resources should also be assessed.

A blue ribbon task force sponsored by the American Bar Association concluded "that inappropriately federalized crime causes serious problems to the administration of justice in this country. It generally undermines the state-federal fabric and disrupts the important constitutional balance of federal and state systems." American Bar Association Task Force on Federalization of Criminal Law (1998) (task force included former Attorney General Edwin Meese and several other present and former prosecutors and law enforcement officials).

Likewise, in the collaborative article, Justice That Makes Sense (1998), the then-leaders of the nation's three largest criminal justice groups — NACDL President Gerald B. Lefcourt, National District Attorneys Association President William L. Murphy, and ABA Criminal Justice Section Chair Ronald Goldstock — agreed: "Criminal and social problems are increasingly being addressed by the Congress with what many have come to regard as a purely political response — calls to federalize more criminal activity and to lengthen already unwieldy prison terms. . . . There can be little doubt that increased federal prosecutive authority has adversely affected the Department of Justice's ability to fulfill its role of enforcing traditional federal offenses."

But we cannot support a right-wing, conservative judiciary. They are more of a menace than a positive force. Anyone concerned with criminal justice issues cannot realistically view a conservative court in a postive light, even though, in addition to the issues set out by Glenn, we appreciate conservative judges' support of privacy rights, opposition to laws providing increased punishment for hate crimes, and views on matters pertaining to asset forfeiture.

Looking at the big picture, a conservative court will not issue an opinion requiring: the repeal of mandatory minimum sentences for drug offenses; a moratorium on the death penalty; abolition of the death penalty; the elimination of racial disparities in sentencing; fair procedures (as exist in many states) regarding discovery, guilty plea colloquy, jury selection, and judicial disqualification; grand jury reform; adequate funding for indigent defense; restoration of full habeas corpus rights that were taken away by the "The Anti-Terrorism and Effective Death Penalty Act of 1996"; meaningful checks and balances and oversight of law enforcement powers through increased scrutiny of requests for even more powers and resources; fair treatment of juveniles as juveniles, not adults; fair treatment of immigrants and restoration of discretionary relief from deportation.

Conservative judges only support some constitutional rights for some people. By and large they do not support constitutional rights for the citizen accused or convicted of crime. Thus, while Prof. Reynolds is correct that we should appreciate a conservative judiciary for the positive effect it will have on issues involving intrusions into privacy and federalism, we think any such benefit is far outweighed by the detrimental effect it will have on our principles of justice and on what until now has been the best and fairest criminal justice system in the world.

Our advice to the Democrats, therefore, is different from that of Professor Reynolds and Mr. Benning. Instead of capitulate and embrace, and hold the conservative jurists to their promise of more great rulings restricting Congress and the federal courts, we advise the democrats to filibuster, early, loud and often. The only way to prevent these right wing jurists from imposing their narrow and unjust views on the rest of us is to keep them from attaining the bench in the first place. Take note of political action alerts, write your elected officials and tell them to oppose the nomination, and remember, grass roots efforts can be successful. A Senator can only serve his or her constitutents if he knows their position on issues. By writing to them, you become heard, and your opinion counts. We neither need nor want more Scalia's, Kennedy's or Clarence Thomas'. Do you?

Dennis Shedd, a controversial nominee for a judgeship on the 4th Circuit Court of Appeals was confirmed today by the Senate. Shedd is a protege of Republican Strom Thurmond.

"The Senate voted 55-44 to agree to the promotion of U.S. District Court Judge Dennis Shedd to the 4th U.S. Circuit Court of Appeals in Richmond, Va., despite accusations that the South Carolina federal judge had been insensitive in civil rights and employment discrimination cases. It was the closest vote on a federal appeals court judge since the Democrats took over the Senate in June 2001. They had enough votes to filibuster the nomination and hold confirmation up until next year, senators said, but decided against the action in deference to Thurmond."

The Houston Chronicle reports that Bush will resubmit Priscilla Owen for a judgeship on the 5th Circuit Court of Appeals when the new Republican-dominated Congress reconvenes in January.

"She faces criticism from numerous special interest groups who claim she is a conservative judicial activist, depicting her state Supreme Court rulings as pro-business and unfriendly to the environment and abortion rights."

"Her record shows her willingness to ignore the law in pursuit of an ultraconservative agenda. And that agenda gets in the way of her responsibilities as a jurist," said Ralph Neas, president of the liberal, Washington-based People for the American Way."

"In numerous dissents, Owen has taken positions that would have effectively rewritten the law or disregarded the expressed language of the law," he said."

And so it begins.

There is only one solution to the vexing problem of Bush's far right nominations to the federal courts, according to law professors Erwin Chemerinsky and Catherine Fisk: use of the filibuster power.

Bush is intent on packing the lower federal courts with conservatives. It is likely that a few Supreme Court Justices will retire during his tenure.

"An enormous amount is at stake in the judicial confirmation process. A change in two votes on the Supreme Court could mean the overruling of Roe vs. Wade and a woman's right to reproductive choice. In the years ahead, federal courts will be deciding crucial questions concerning the federal government's power to provide remedies for civil rights violations, including employment discrimination based on race and gender.

"Also, the federal courts are the essential and only check against excessive government interference with individual rights in the name of the war against terrorism. Indeed, in every area of personal freedom, from freedom of speech to privacy, American law and policy will depend on the composition of the courts."

The judicial composition of the lower federal courts is similarly important. "Because the Supreme Court decides only about 75 cases a year, and hears fewer than 2% of the cases in which review is requested, who sits on the federal Court of Appeals is crucial."

Chemerinsky says that he was called by the Clinton White House Counsel and told he was a possible nominee for the federal Court of Appeals. Later he was told he could not be nominated because his liberal stands on affirmative action and reproductive freedom wouldn't fly in the Republican-controlled Senate.

"If outspoken liberals were unacceptable judicial nominees during the Clinton administration, then extreme conservatives are equally unsuitable now. Courageous Democrats in the Senate must announce their intent to use the filibuster to prevent a conservative takeover of the federal courts that could last long beyond our lifetimes."

To us, that's the scariest part. The legacy we will be leaving our children. We don't want our child to suffer at the hands of the radical right. We raised him to be appreciative of basic notions of fairness, equality, due process and individual liberties--we taught him that these are the rights that distinguish our nation and make it a beacon of liberty. Now at the hands of a president we didn't elect, the beacon is likely to be extinguished. So we echo Chemerinsky and Fisk, and call upon the Democrats in the Senate to filibuster until the cows come home, and preserve the integrity of our federal courts.

Instapundit doesn't think much of Cass Sunstein's op-ed piece on Bush's renewed vigor to fill the federal courts with conservative judicial activists. I thought Sunstein's article was uninspired, at best.

I do agree with Sunstein that conservative judicial activists extremists pose a threat to the Constitution because the Constitution is a living and breathing document which can be viewed as ambiguous or open to interpretation in some instances. Stacking the courts with judicial activists extremists will provide some judges with too much power to impose their views of what the Constitution means.

Far better reading is today's New York Times Editorial, Defending the Judiciary, which is not only more on target than Sunstein, but offers some solutions as well.

In a Washington Post editorial today Can't Have It Both Ways , the paper takes the Bush Administration to task for asserting that its judicial nominess should be confirmed irresepective of ideology while at the same time critizing Judge William Sessions of Vermont for his opinion this week declaring the death penalty unconstitutional.

"It seems that the Bush administration believes judging is an apolitical task only as long as judges do the right thing by administration lights. When the department disagrees with an opinion, it reserves the right to blast a judge in overtly political terms. "

".... certainly the view advanced by Judge Sessions, an appointee of President Clinton, is within the bounds of respectable interpretation. "

How did the Administration react to the opnion?

"....Attorney General John D. Ashcroft's spokeswoman, Barbara Comstock, stated: "Today's decision underscores the importance of confirming President Bush's nominees to the federal bench -- well-qualified men and women who will apply the laws that Congress has passed in accordance with Supreme Court precedent. . . . Congress passed the Federal Death Penalty Act to save lives, and the Supreme Court of the United States has repeatedly said the death penalty does not violate the Constitution. Judge Sessions's decision to the contrary is under review."

What's good for the goose....

Here is a news account of the judicial confirmation hearing today of Miguel Estrada.

For an account from a lawyer's point of view, check out How Appealing where Howard Bashman has been meticulously chronicling the hearing all day.

Actually, we think we prefer Estrada to O'Connell. We say "think" because there's scarce information on either of their views on criminal law issues. For now, we are content to be on the sidelines on Estrada and O'Connell as individual appointees, although we are definitely of the opinion that the President does not have a right to flood the judiciary with such far right-wing ideologists, particularly if there is any indication that they will become judicial activists--deciding cases based upon their conservative views rather than the law. And the Republicans, Hatch in particular, are being so disingenous about the confirmation process--see our post earlier today or last night quoting Law Professor Jeff Cooper on this.

Law Professor Jeff Cooper over at Cooped Up says that Utah Senator Orrin Hatch is being more than a tad disingenuous in his statement to Congress earlier this week on judicial nominations.

Prof. Cooper says:

"Sen. Hatch decries the consideration of ideology in the Senate Judiciary Committee's evaluation of judicial nominations. In his statement, Sen. Hatch asserts that during the Clinton administration he never voted against a judicial nominee because of the nominee's ideology. This statement, while perhaps technically true, scores major points for gall. The reason Sen. Hatch never voted against nominees based on ideology is that, as then-chair of the Judiciary Committee, he refused to schedule confirmation hearings for an enormous number of Clinton's nominees. Rather than voting based on ideology, in other words, he manipulated the Senate's rules to kill nominations without votes, based apparently on ideology (Sen. Hatch could not seriously contend that all, or even many, of the nominations for which he refused to hold hearings involved nominees who were "unqualified" based on their credentials and judicious character). Far from being thoughtful commentary, Sen. Hatch's statement reveals him once again to be a hypocrite of the first order. "