Sometime in the coming days, George W. Bush will hand down a list of nominees to fill ninety-nine vacancies in the federal courts. The federal judiciary as a whole is at stake in the fight that will follow. Bush sees the 50-50 Senate balance, with Vice President Cheney the tiebreaker, as a small window of opportunity for loading the benches with judges in the mold of his favorite Supreme Court Justices, Antonin Scalia and Clarence Thomas. The outcome will determine whether Republicans will transform the courts into a rubber stamp for their minority right-wing agenda.

The Supreme Court--whose recent actions include an attack on the Americans with Disabilities Act and its undermining of the Violence Against Women Act--remains the ultimate arena. Although its right-wing bloc has put its man in the White House, it should not be allowed thereby to insure its own succession. Because Bush lacks a mandate, there should be a moratorium on all High Court appointments until after the 2004 election. For the moment, however, immediate retirements appear unlikely, so the important campaign is in the lower courts.

Thanks to GOP obstruction of Bill Clinton's nominees, Republican-appointed judges are predominant in eight of the thirteen federal appellate circuits. Several of these circuits--the Fourth Circuit, located in Virginia, the Eleventh in the Deep South and others--are tipped in the direction of "strict constructionism," which means the most activist judiciary in memory. These circuits are already well outside the mainstream of American legal opinion. The Fourth Circuit's rulings, for instance, have so radically stripped the rights of criminal defendants that they have been repeatedly overturned in recent months even by the law-and-order Rehnquist Supreme Court.

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