- The Washington Times - Thursday, May 10, 2001

Two of President Bush's first 11 judicial nominees have touched the third-rail issue of abortion without derailing their careers and three others are retreads whose nominations by the president's father failed.
The nomination list, which seems carefully balanced on ideological and political grounds, appears to stand fast on contentious questions about court activism and conservative philosophy while providing names Democrats may find impossible to delay or oppose, including several Clinton nominees.
A lawsuit against abortion protesters involved Washington lawyer Miguel A. Estrada, who argued the government position supporting the National Organization for Women in 1993. He defended NOW's view of the Racketeer Influenced and Corrupt Organizations Act (RICO). In the end, NOW and other groups won the right to seek money damages under RICO from abortion protesters. More recently as a private lawyer, Mr. Estrada lost a 1999 Virginia death penalty appeal for Tommy David Strickler, who claimed he was denied access to prosecution evidence during his trial.
Texas Justice Priscilla R. Owen dissented from last year's 6-3 Texas ruling nullifying the state's parental notification law. In the Texas case, in which current White House Counsel Al Gonzales voted in the majority, Justice Owen issued a dissent calling the law meaningless as the court interpreted it.
Justice Owen also drew notice in 1997 for writing the 7-1 ruling that Texas schools may limit the hair length of boys, and deny them the right to wear ponytails.
One nominee, University of Utah law professor Michael W. McConnell, is widely identified with religious issues, and has publicly declared himself on several religion issues facing court tests including using public vouchers in parochial schools and the Religious Liberty Protection Act (RLPA).
Mr. McConnell, who contends that much of the First Amendment religious litigation involves hostility to religion and not neutrality, in 1998 defended the pending RLPA before the Senate Judiciary Committee. Its outcome in the courts could be crucial to Mr. Bush's faith-based initiatives.
"With all respect to those academics who have expressed a contrary opinion, the proposed bill is plainly constitutional on its face and as applied to most if not all probable applications," Mr. McConnell testified.
During his term, President George Bush chose three of the 11 now on his son's list:
Chief U.S. District Judge Terrence W. Boyle, of Elizabeth City, N.C., a former aide to Sen. Jesse Helms, North Carolina Republican. His rulings include a 1998 opinion blocking a much-litigated House redistricting plan eventually approved this year by the Supreme Court in its fourth incarnation. Judge Boyle also ruled in 1993 that Canadian pharmaceutical company Novopharm could not market generic forms of the Zantac ulcer drug in the United States until 2002.
Washington lawyer John G. Roberts Jr., 46, to the D.C. Circuit. The former law clerk to Chief Justice William H. Rehnquist specializes in litigating at the Supreme Court where he has argued 33 cases.
Jeffrey S. Sutton, 40, a Columbus, Ohio, lawyer who has clerked for both Justices Lewis F. Powell Jr. and Antonin Scalia.
Mr. Sutton has argued seven cases at the Supreme Court and won three of them in the last year alone, all on the constitutional issue of immunity for states from private lawsuits all by 5-4 decisions that divided the court's conservative and liberal wings.
The two black judges among the president's first 11 nominations, and a Hispanic, provide not only diversity but include one judge whom Democrats demanded be nominated.
Circuit Judge Roger Gregory already is at work at the 4th Circuit where he is serving a one-year recess appointment by President Clinton that stirred Republican opposition in January.
Judge Gregory's first two written opinions were issued on April 20 in a banking case and on May 4 in a damage lawsuit involving the family of Brian Cox, who was shot to death by Prince William County police on Dec. 12, 1997, after a fight with his wife.
The court ruled that the police investigating a burglary report at the Cox home did not use excessive force when they found an inebriated Mr. Cox asleep in a bedroom. When they woke him, he pointed a rifle at the officers who shot him.
The other black nominee is U.S. District Judge Barrington D. Parker Jr., of White Plains, N.Y., a former teacher who was appointed in 1994 by Mr. Clinton. He is the son of a former chief judge for the U.S. District Court in the District.
Judge Parker was the trial judge for mob figure John A. Gotti and he presided in the racial discrimination case that resulted in a $176 million settlement by Texaco with black employees and criminal charges against two Texaco officials for obstruction of justice and conspiracy.
Others on the president's list include U.S. District Judge Dennis W. Shedd, 48, of Columbia, S.C., whose recommendation for a higher court appointment was the subject of a January press release by his former boss, Sen. Strom Thurmond, South Carolina Republican.
During Mr. Thurmond's tenure as chairman of the Senate Judiciary Committee, Mr. Shedd was the committee's chief counsel and staff director.


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