Who appoints federal judges is crucial for Indian country and Indian law. Federal judges serve for life and are nominated by the President and confirmed by the Senate. They hear many Indian law issues and cases.
The President’s political views are very important on who gets nominated to the federal bench. George Bush and other Republican Presidents have appointed federal judges and Supreme Court Justices who historically and fairly consistently rule against tribal positions and Indian litigants.
The influence of federal judges on American life is nearly more important than who we elect as the president. Presidents serve for 4-8 years and, of course, have a major effect on American life and policy, although the Congress and the Courts serve to counterbalance that power. Federal judges, however, serve for life and often for thirty years or more. Especially for Supreme Court Justices, life tenure and the power they wield has enormous implications for Americans.
Sen. McCain has already stated that he will continue to appoint the kind of conservative judges and Supreme Court Justices as President George Bush. That’s just one of the reasons we need a Democratic president.
For example, Indianz.com reports on one conservative federal judge and her impact on Indian issues:
“In just under three years on the bench, one of President Bush’s controversial judicial nominees has written negative rulings in three high-profile Indian law cases.
Janice Rogers Brown sits on the D.C. Circuit Court of Appeals, one of the most important in the nation. . . . Brown, a former California judge, is sometimes mentioned as a possible high court nominee. Going by her rulings, she’d likely fit in with the more conservative justices on the Supreme Court, which has slowly eroded tribal rights over the last two decades.
In the latest case, Brown authored a dissent that struck down key provisions of the Indian Reorganization Act of 1934. She is the only judge among three other circuit courts to rule that the land-into-trust process violates the U.S. Constitution.
The Supreme Court has been asked repeatedly to do the same by a number of states and will hear a land-into-trust case this fall. . . .
Indian gaming opponents plan to use Brown’s dissent to revive the issue, which last drew a critique from Justice Antonin Scalia. Scalia is among the most conservative members of the high court and said he would have accepted a South Dakota case in 1996 that challenged the constitutionality of the Inidan Reorganization Act.
Even before the April 29 ruling in Michigan Gambling Opposition v. Kempthorne, Brown was well-known for another negative decision. This time, she wrote the majority opinion in San Manuel Band of Mission Indians v. National Labor Relations Board.
The case overturned 30 years of precedent and subjected tribes and their enterprises to federal labor law. In the February 12, 2007, decision, Brown wrote some sweeping passages about the nature of tribal sovereignty and Indian gaming.
By opening casinos, marketing them to non-Indians and employing non-Indians, tribes are stepping beyond “traditional” notions of self-governance, Brown wrote. She described tribal sovereignty as “far from absolute” and said tribal governments will suffer only a “modest” impact under federal labor law.
“First, operation of a casino is not a traditional attribute of self-government,” Brown wrote for the majority. “Rather, the casino at issue here is virtually identical to scores of purely commercial casinos across the country. Second, the vast majority of the casino’s employees and customers are not members of the tribe, and they live off the reservation.” . . . Labor unions are now using the decision to bolster their attempts to organize at tribal casinos. . . .
President Bush nominated Brown to sit on the D.C. Circuit on July 25, 2003. Concerns over her qualifications and rulings in California led Democrats to block her confirmation for two years.
At the time, tribes did not take a position on Brown. They focused on Bill Myers, a 9th Circuit nominee whose actions as Solicitor for the Interior Department put him at odds with sovereignty and the trust relationship.
An agreement between Republicans and Democrats left Myers on the chopping block but Brown was put to a final vote on the Senate. She was confirmed by a 56-43 vote on June 8, 2005.
Sen. Hillary Clinton (D-New York) and Sen. Barack Obama (D-Illinois), the leading Democratic presidential candidates, voted against Brown. Sen. John McCain (R-Arizona), the presumptive Republican pesidential nominee who had brokered the nominee agreement, voted in favor.”
