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Release Date: October 24, 2008
On the way to the voting booth on November 4, in addition to thinking about who should occupy the White House, we should also be concerned about who he will appoint to federal courts. The next President will likely name one to three Justices to the Supreme Court and hundreds to lower federal courts. I can't over-emphasize how important this is to America's children and future. Federal judges are appointed to life terms and preside over cases involving a broad range of issues affecting children and working families including health care, education, civil rights and child safety. For example, in June 2008, the Supreme Court struck down Washington, D.C.'s ban on handguns in its ruling in the District of Columbia v. Heller case. This decision puts at risk numerous state and local statutes and ordinances designed to remove guns from our streets at a time when gun deaths among children are on the rise.
On the Supreme Court docket for this 2008-09 term are a number of cases that will affect the welfare of children. In the Altria Group v. Good case, the Court will rule on whether cigarette manufacturers can be sued for deceptively labeling their products as "light" and "lowered tar and nicotine." This case will have a major impact on the health of children and teenagers who are influenced to start smoking because they are deceived by these ads. Many of them will grow up to be among the 438,000 who die of smoking related causes each year. In a similar case, Wyeth v. Levine, the Court will decide whether pharmaceutical manufacturers are liable for injurious drugs even if they are approved by the Food and Drug Administration. The Arizona v. Johnson case will decide whether police officers can pat down motorists for routine traffic stops even if the officer has no reason to believe they committed a crime. This is particularly ominous for minority youths who often are victims of police profiling.
Regrettably, for a generation, the Supreme Court's slim five to four conservative majority has handed down decisions on numerous cases that threaten hard-earned progress for children, families, women, minority groups and the poor. The Court also has eroded civil rights gains, including desegregation and affirmative action efforts, and other social and economic advancements made since the 1950s. That has been true of the lower federal courts as well.
During his time in the White House, President George W. Bush contributed to this negative progress by selecting judicial nominees who generally espouse a conservative, so called "strict constructionist" philosophy of jurisprudence that supposedly adheres to the letter of the U.S. Constitution as written. They view the Constitution as a static piece of paper instead of a living document that evolves to respond to the needs of our society—as when the Supreme Court struck down the doctrine of "separate but equal" that justified racial segregation with its 1954 Brown v. Board of Education school desegregation decision. If the next President names ultraconservative jurists to the Supreme Court and lower federal courts as President George W. Bush has, children and working families will not be well served in the administration of justice.
While the Supreme Court is paramount in its decisions, appointments to Circuit Courts of Appeals and District Courts should not be underestimated. The majority of cases adjudicated in Circuit Courts of Appeals do not go on to the Supreme Court. And the District Courts—where cases are actually tried—handle more than 250,000 cases each year. Most of them are not even appealed to the Circuit Courts.
For justice to be served, the next President must select nominees for federal courts with an eye toward advancing a positive vision of the law through a living Constitution that champions fairness, justice and equality for all. The federal judiciary should be comprised of men and women with diverse backgrounds, perspectives and a broad range of life experiences— qualities often lacking in appointments to the bench over the last eight years. For example, I am dismayed that of President Bush's 326 judicial appointments, only 24 or 7.3 percent were Black.
We cannot afford an increasingly ideological or conservative judiciary. As the next President considers who to appoint to the federal bench, he should do so with the understanding that he will help chart the philosophical direction of the federal judiciary for decades to come. He must restore the public's confidence that our courts will extend justice to all of our citizens including all our children. As the late Circuit Court Judge A. Leon Higginbotham, Jr., declared: "Justice should not be the private preserve of the well-off and those with influence but should be extended to the poor, the voiceless, the powerless and the downtrodden."
The Child Watch Column also appears each week on The Huffington Post.