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.
The Administration has junked the American Bar Association's vetting of judicial candidates and turned this task over to conservative legal ideologues. Senate Republicans are trying to outflank Democratic opposition by jettisoning the practice of consulting with senators of the opposition party on political nominees from their states. Judiciary Committee chairman Orrin Hatch plans to abandon the tradition of requiring that nominees win the approval of both senators from their home state–a maneuver that will bring to the floor Bush nominees from the fourteen states with only one Democratic senator.
With the Rehnquist Supremes taking ever fewer cases–only eighty this past term–the federal appeals courts are now increasingly the courts of last resort, and it is essential that Senate Democrats hold the line against further shifting the balance in those courts. There is nothing immoderate or partisan in Democrats–as well as independent-minded Republicans–using their advise and consent power to the fullest to reject any nominees for those circuits who cannot demonstrate substantive commitment to progress in civil rights, to women and to environmental and business regulation. Conservatives will accuse them of "Borking," but that distorts the meaning of the fight against Robert Bork's confirmation, which involved no more than an intensive scrutiny of the nominee's record and philosophy. The goal should be to block the Administration's avowed attempt to pack the federal bench with ideologues who would undercut environmental protection laws, roll back basic rights for all Americans and give the religious right's "morality" the force of law.