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In the judicial nomination wars, 2003 was the year of the filibuster. As the year began, the GOP had just regained control of the Senate, and Democrats’ prospects for blocking President George W. Bush’s judge picks looked bleak. But the minority party was able to deploy filibusters with surprising success to stop several appeals court nominees, who remain in limbo at year’s end. But as the partisan rancor goes on, so does the day-to-day work of the federal courts in deciding cases, and Bush judges are very much a part of the mix. Fully 20 percent of the sitting federal judges today — 168 out of 833 judges — are Bush appointees. In 2003 alone, the Senate confirmed 100 Bush judges — 17 for appeals courts and 83 for the district bench. Out of 877 federal district and appeals judgeships, there are now only 44 vacancies — and the president has made a nomination for each one. Across the nation, Bush judges, many of them controversial when nominated, are handing down rulings with direct impact on issues such as the rights of public school students, the legality of police tactics, the procedures for dealing with illegal immigrants, and a host of other crucial questions. Perhaps the most noteworthy action by a Bush judge this year came last week in the case of Jose Padilla, when Barrington Parker Jr. cast a vote for the majority in a 2-1 ruling that pushed back against the government’s war on terrorism. Parker — named to district court by President Bill Clinton and promoted to the U.S. Court of Appeals for the 2nd Circuit by Bush in 2001 — held that the president may not detain a U.S. citizen indefinitely as an enemy combatant. Judge Richard Wesley, a Bush appointee who joined the court in June, dissented. On Dec. 12, Judge John Roberts Jr., a Bush nominee to the D.C. Circuit, was a member of a three-judge panel that rejected defamation claims filed by Carey Lohrenz, one of the first two women to qualify as a combat pilot in the U.S. Navy. The other woman who trained with Lohrenz, Kara Hultgreen, was killed in 1994 while attempting to land her plane on an aircraft carrier. Hultgreen’s death triggered a renewed debate on women in combat, with some arguing that women aviators were being promoted by the Navy in the Clinton years despite their “substandard performance.” Lohrenz sued activist Elaine Donnelly and two newspapers that published statements Donnelly had made along these lines. But the D.C. Circuit, in an opinion written by Clinton appointee Judith Rogers and joined by Roberts, rejected her claims. The court held that Lohrenz became a limited-purpose public figure “at the point that she ‘suited up’ as an F-14 pilot.” She thus had to meet a very high standard for her defamation case to succeed, one the D.C. Circuit found she could not satisfy. Bush appointee Dennis Shedd, a judge on the 4th Circuit, sat on a panel that reversed a trial judge and ruled in favor of a middle-school student who was prohibited from wearing a T-shirt that depicted men with rifles and the letters “NRA.” The Virginia public school had a rule against students wearing clothing with messages relating to weapons or violence, among other things. Administrators said the boy’s shirt called into mind the shootings at Columbine High School in Colorado. The student, Alan Newsom, claimed his First Amendment rights had been violated. A district judge declined to grant an injunction against the school, but the 4th Circuit on Dec. 1 ordered the injunction be issued. This dress code rule “excludes a broad range and scope of symbols, images, and political messages that are entirely legitimate and even laudatory,” wrote Senior Judge Clyde Hamilton in an opinion Shedd joined. On Nov. 4, a third Bush judge, Michael McConnell, wrote a unanimous opinion for the 10th Circuit that rejected a claim by nude dancers in South Salt Lake City, Utah, that a city ordinance against nude dancing violated their First Amendment rights. In upholding the law, McConnell found that nudity “is not a message in itself, but is a mode of conveying many different messages . . . South Salt Lake City has not precluded the expression of any particular set of ideas, but has prohibited one particular manner of conveying those ideas.” In demonstrating that nudity can have many meanings, McConnell pointed to its use in works as disparate as Botticelli’s painting The Birth of Venus, the movie “M*A*S*H,” and the biblical book of Hosea. Finally, on the judicial nominations front, probably the biggest news of 2003 was something that did not occur. After the end of the Supreme Court’s 2002-03 term in June, lawyers and Court-watchers were braced for a retirement, or two. No justice chose to step down, however, and the current group of nine justices entered their 10th year together with no immediate indication that anything would change.

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