Judicial Disappointments

With a stalled economy and ongoing attacks against U.S. troops, judicial appointments seemingly lack the immediacy and scope to register among Americans' concerns this election season.

But relegating the president's power to make lifetime appointments to the lower tiers of political consideration sets dangerous precedent -- and could impact the rights of ordinary citizens for decades to come.

Federal judges play a critical role on such issues as civil rights, reproductive rights, and environmental and consumer protections. And as the recess appointment of Charles W. Pickering Sr. most recently demonstrated, President Bush is bent on packing the federal courts with ideological extremists who have shown a willingness to rewrite statutes, distort precedent, and misrepresent facts to justify positions against many of our treasured rights and protections.

Republican appointees now comprise 53 percent of the federal judiciary and are in the majority on 9 of 13 circuit courts. Given vacancies and pending nominees, by the end of the year Republicans could gain the majority on all but one.

President Bush relentlessly pushes to pack the courts, and he has not shown the same commitment to diversity demonstrated by President Clinton. Of Clinton's 440 judicial nominees, 131 were women (30 percent) and 112 (25 percent) were racial or ethnic minorities. Of President Bush's 216 nominees to date, 46 (21 percent) are women and 40 (19 percent) are minorities.

Although Democrats have been able to block the worst of the nominees, Bush already has made enough lifetime appointments to leave an indelible mark on the federal judiciary -- and there is no reason to believe that his campaign to stack the courts will abate in an election year.

The Republican Party's right wing has long recognized the role of federal courts in deciding public-interest and civil rights cases. For this constituency the judicial nominations process is a critical factor in determining how, and whether, they vote. In this presidential term, we also have witnessed the increasing involvement of another powerful Bush constituency: the business lobby, which is financing private-sector campaigns to confirm nominees. Like Ronald Reagan, Bush has used his judicial nominations to shore up his right-wing base and to increase fundraising. Republican strategist Karl Rove recently spoke about the need to invoke judicial nominees to reach and mobilize 4 million disaffected fundamentalist voters.

So determined is this president to demonstrate this commitment to remake the federal bench to his right-wing base that he has nominated numerous people lacking in legal distinction or experience -- leading the American Bar Association's Standing Committee on the Federal Judiciary to draw the line with some of the more flagrantly inexperienced and unqualified nominees.

Other nominees have engaged in activities that violate canons of legal and judicial ethics. For example, one of President Bush's appointees to a Texas district court, Ron Clark, reportedly asked the White House not to sign his official commission papers -- a routine ministerial action -- after the Senate confirmed him so that he could continue campaigning for reelection to the Texas legislature. Such actions clearly violate ethics rules forbidding judges and nominees from campaigning for political office.

Acrimony in the Senate

Even without a much-anticipated Supreme Court retirement, 2003 proved to be one of the most acrimonious years for judicial nominations -- topped by revelations in January that Republican Judiciary Committee staffers spent the last year infiltrating Democrats' computers to monitor secret strategy memos and to pass along copies to right-wing media.

Senate Republicans also responded to Democrats' efforts to perform their constitutional duty of advise and consent by arbitrarily reversing or ignoring longstanding rules and practices to grease the path to confirmation for Bush nominees.