All signs point to an all-out drive by the Bush Administration to slot judicial conservatives into the eighty-nine current vacancies on the federal bench. The recent to-do about ending the American Bar Association’s role in screening nominees was a smoke signal to the conservative base that only the “right” kind of judges henceforth need apply. White House counsel Alberto Gonzales grumbled that the ABA, which has been screening nominees since the Eisenhower Administration, “takes public positions on divisive political, legal and social issues.” In fact, ABA’s screening committees eschew political judgments, instead evaluating the candidates’ ethics, competence and judicial temperament.
The real meaning of Gonzales’s words is that the Bushites want a free hand to appoint their own ideologues. Conservatives crave revenge for the 1987 Senate rejection of Supreme Court nominee Robert Bork, whom four members of the ABA’s fifteen-member standing committee found “not qualified.” This split decision by the usually unanimous committee gave ammunition to Bork’s opponents. Gonzales let the word go forth that in selecting nominees he and John Ashcroft will heed the Federalist Society and kindred far-right legal groups whose acolytes honeycomb this Administration.
Bush further heartened his right-wing supporters by blocking Clinton nominees for the bench like Roger Gregory, who had been given an interim appointment to the Fourth Circuit. (He’s the first African-American to enter Jesse Helms’s segregated preserve.) Meanwhile, other solidly qualified Clinton nominees have been left dangling by the Judiciary Committee, including James Klein, the able DC public defender; Helene White (whose nomination was stalled for more than 1,500 days) and a score of others for whom Senator Orrin Hatch refused to hold hearings.
The Bushites’ court-packing drive is a grade-A rush job. For one thing, the roll Bush is on is petering out with his tax plan seen by a wider public as too friendly to the rich. Then, too, if an enfeebled Strom Thurmond exits the stage, control of the Judiciary Committee would shift to the Democrats, and then it’s a whole new ball game.
If ever there was a time for mobilizing a counteroffensive, this is it. Bush has no mandate to add more weight to an already rightward-tilting federal bench. The Supreme Court’s patently political ruling in Bush v. Gore has shaken its credibility. There is a growing constituency for judicial integrity and against a rollback of individual rights. Public-interest groups are tuning up. Some that will be in the thick of the fight: National Women’s Law Center, National Abortion and Reproductive Rights Action League, Leadership Conference on Civil Rights, People for the American Way, NAACP Legal Defense and Educational Fund (for more information contact Marcia Kuntz at the Alliance for Justice, 202-822-6070; [email protected]).
Progressives must also apply pressure on Democratic senators to stall the Bush drive to stack the bench. Yale law professor Bruce Ackerman’s suggestion that no Bush Supreme Court nominees should be approved is on the mark. Democrats should demand the same privilege that Hatch claimed of vetting all lower court nominees before their names become public.
Let’s heed the admonition of Nan Aron of the Alliance for Justice: “Fight early, fight often and fight to win.”