When George W. Bush ran for President three years ago, his strategists and media advisers positioned him quite carefully as something new in the political spectrum. Seeking to appeal to his party’s rightist base while disguising his extremism, Mr. Bush declared himself a “compassionate conservative.” Now we know him better-and as he seeks to pack the federal appellate courts with reactionary judges, his ideological disguise is so thin as to be transparent.
The conservatism of the Bush judicial nominees is plain enough, if “conservative” is defined as synonymous with the attitudes and objectives of the religious right. One of his most recent choices for a federal appellate nomination, Alabama Attorney General Bill Pryor, filed an amicus brief in the Texas sodomy-law case currently pending before the Supreme Court that compares gays with those who practice “necrophilia, bestiality, possession of child pornography, incest and pedophilia.”
In other words, Mr. Pryor is the kind of devout busybody whose overwhelming desire to intervene in other people’s private sexual conduct defines him as a “conservative” in the White House lexicon. Other Bush nominees apparently share these prejudices masquerading as conservatism. But in what sense can the President’s judicial selections be described as compassionate? Only, perhaps, if that word’s definition has been twisted to mean absolute solicitude for corporations and bureaucracies-and none for ordinary citizens.
Consider Carolyn Kuhl, the President’s choice for a seat on the Ninth Circuit federal appellate bench in San Francisco. Ms. Kuhl is a former conservative staffer in the Reagan Justice Department whose main contribution to government in her youth was a paper endorsing the tax-exempt status of the infamously bigoted Bob Jones University. (She has recently revised her opinion, saying that she made a “mistake” back then.) More recently, however, she has earned a degree of notoriety for her decision in a case titled Sanchez-Scott v. Alza Pharmaceuticals. In a ruling overturned on appeal, she dismissed a lawsuit brought by Azucena Sanchez-Scott, a cancer patient whose breast examination was observed in her doctor’s office-without her informed consent-by a drug-company salesman. The humiliated woman sued both the doctor and the salesman’s company, Alza Pharmaceuticals, for invasion of privacy. As a judge on the Los Angeles Superior Court, Ms. Kuhl dismissed the plaintiff’s case against both the doctor and the drug company.
The appellate judges who unanimously overturned the Kuhl decision seemed dumbfounded by her reasoning, or lack thereof. What they didn’t understand is that in Bush-style jurisprudence, the corporation is always right.
Among the Bush nominees, Ms. Kuhl is hardly alone in her corporation-coddling approach to the law. Priscilla Owen, the Texas judge whose nomination to an appellate seat by the President was subjected to a filibuster by Senate Democrats, was similarly disposed in her consistent rulings against consumers and in favor of insurance companies and corporations. Texas justice permits judges to hear cases involving their corporate contributors; and Ms. Owen’s rulings were especially favorable to firms that had contributed to her judicial campaigns, including Enron and Dow Chemical.
Among the judge’s great achievements is a decision overturning lower-court rulings in favor of a woman who had sued her insurance company after it declined to cover operations that removed her spleen and gall bladder. The trial jury awarded the woman $50,000, and the court trebled the damages under a state law forbidding deceptive trade practices. On appeal, however, the reliable Judge Owen found a legal means to protect the insurance company from its customer.
Nor should we overlook Deborah Cook, nominated to a vacancy on the Sixth Circuit federal appellate court in Cincinnati. Ms. Cook, a former corporate lawyer, has compiled a truly impressive record of shilling for business and insurance interests during eight years on the Ohio Supreme Court. Even her fellow Republican judges often find her opinions astonishing. As The New York Times remarked recently, this is a judge who often “reaches for a harsh legal technicality to send a hapless victim home empty-handed.”
Her own victims have included a poisoned worker in a beryllium plant; a 61-year-old office manager publicly humiliated by an employer trying to force her to retire; and the widow of a Wal-Mart forklift operator crushed to death in a work accident, whose case was compromised by the company’s lying and concealment of evidence. In all those cases, Judge Cook ruled for the corporation against the citizen. (Fortunately, her colleagues ignored her dissenting views.)
For accuracy’s sake, Presidential guru Karl Rove should rename the philosophy he and his boss espouse. Perhaps it should be called “corporate conservatism,” or “conservative corporatism,” or “compassion for corporations.” Or just about anything except “compassionate conservatism.”
