Through the Justice Department's role in recommending nominees to the federal courts, the Attorney General plays a critical role in deciding what kind of judges will preside over the federal judiciary. The screening and selection process carried out in the Justice Department and the White House legal counsel's office determines whether the nominees who come before the Senate for confirmation are fair-minded individuals committed to equal justice or are ideologues chosen to advance a specific social and legal agenda.
The far-right team that John Ashcroft has put in place at the Justice Department, and the similar ideological bent of the White House legal counsel's office, make it clear that many rights and freedoms Americans take for granted are in jeopardy. Unless the U.S. Senate acts to prevent the enshrining of John Ashcroft's legal philosophy on the U.S. Supreme Court and throughout the federal judiciary, many fundamental civil rights and civil liberties could be eliminated. In fact, progressive values could be shut out of federal policy for the next half-century, much as the Supreme Court in the first third of the 20th Century overturned progressive legislation, from child labor laws to the first elements of the New Deal.
As a presidential candidate, George W. Bush appealed to the far right of his party with a pledge to appoint Supreme Court justices in the mold of Antonin Scalia and Clarence Thomas. The administration signaled its intentions to infuse the entire judiciary with a right wing legal philosophy when Attorney General John Ashcroft and White House Counsel Alberto Gonzales held a press conference to announce that the administration had ended the role of the American Bar Association (ABA) in the process of evaluating potential judicial nominees. Since the Eisenhower administration, the ABA had served as a quasi-official consultant to the president on judicial nominations. Nominees were rated after a review that typically included not only a thorough look at a nominee's work, but also extensive interviews across a broad cross section of the legal profession itself, including the nominee's professional peers, the bench, and the law schools. But no longer.
Today, many of those with direct responsibility for selecting judicial nominees in both the Justice Department and the White House, are members of the Federalist Society. In the Justice Department they include Ashcroft and Assistant Attorney General Viet Dinh, and in the White House, Deputy Counsel Tim Flanigan and Associate White House Counsel Brett Kavanaugh. According to press accounts, the lawyers who serve on the judicial screening committee, "typically have collected similar credentials for entry in that elite group; most have been law clerks for conservative judges and Supreme Court justices and are members of the Federalist Society." According to one report, moreover, 12 to 20 of the first set of candidates interviewed for judgeships by the administration's team "were directly recommended by the Federalist Society's Washington headquarters." And indeed, six of President Bush's first 11 nominees to the federal court of appeals have been members of the Federalist Society.
That impact of this administration's nominees could easily extend for the next 30 or 40 years. It is very likely that President Bush will have the opportunity to name more than one Supreme Court justice. Indeed, it has now been seven years since the appointment of Justice Breyer, the longest interval between nominations since the administration of James Monroe nearly 180 years ago.
The Supreme Court is closely divided on a range of fundamental issues. A Supreme Court dominated by the far right, with just one or two new justices in the mold of Scalia or Thomas, would curtail or abolish many rights and freedoms that millions of Americans take for granted. The Court's right-wing justices are eager, of course, to outlaw abortion under any circumstances by overturning Roe v. Wade - and they only need one or two more votes. They have also called for dramatically curtailing the protections afforded minority voters by the Voting Rights Act and by other civil rights laws, as well as for reversal of precedents that protect Americans from discrimination based on sex, age, disability and sexual orientation. A far-right Court would sharply curtail workers' rights, environmental protection and religious liberty, and would make campaign finance reform and gun control virtually impossible. In short, a Scalia-Thomas Court majority could overturn more than 100 Supreme Court precedents that have been embraced by conservative, moderate, and liberal justices alike. For an in-depth analysis of the consequences of additional right-wing Supreme Court justices, see People For the American Way Foundation's "Courting Disaster."
And all of that is on top of the disturbing series of states' rights rulings that the current conservative majority has already used to restrict the federal government's ability to protect citizens' rights from abuse at the state level.
Far more than the Supreme Court is at stake, however. Long before George W. Bush was even a candidate for the presidency, the far right set the stage for the attempted takeover of the federal courts, particularly the U.S. courts of appeal. Ultraconservatives in the Senate leadership waged an unprecedented ideological stalling campaign against well-qualified Clinton administration nominees, constructing a virtual blockade of judicial nominations. From 1995 to 2001, 35 percent of Clinton's appeals court nominees were stopped. This blockade was only briefly and partially lifted even when Chief Justice William Rehnquist chastised Senators for refusing to vote up or down on nominations and allow many vacancies to be filled.
Ashcroft himself was among a group of far-right Senators who repeatedly delayed and opposed well-qualified Clinton nominees to the federal bench. Most notoriously, Ashcroft led a scorched-earth campaign against the confirmation of Missouri Supreme Court Judge Ronnie White to a federal judgeship, delaying a vote on his nomination for several years and then relying on demonstrably false charges that were never raised at Judge White's hearing to torpedo the nomination.
Even White House Counsel Alberto Gonzalez has acknowledged that "the conduct of the Republican senators" regarding Clinton's judicial nominees "was wrong." But right-wing obstructionism paid off with a large number of vacancies awaiting President George W. Bush when he took office; there are currently more than 100 vacancies on the lower federal courts, including more than 30 vacancies on the circuit courts of appeals. Currently, judges appointed by Republican presidents control eight of the 13 circuit courts of appeals. If George W. Bush succeeds in filling all the current vacancies, Republican nominees will control 11 of the 13, and it is expected that within the next four years, every one of the nation's federal appeals courts could be controlled by Republican nominees. And the Bush administration's first nominations are, with few exceptions, the kind of staunch conservatives that the Federalist Society hopes to see dominating the federal bench, many of whom are willing to defy Supreme Court precedent.
People For the American Way has urged senators to carefully examine each nominee's record, a more likely prospect after Sen. James Jeffords left the Republican Party and Sen. Orrin Hatch lost his chairmanship of the Judiciary Committee, where he was preparing a system to speed nominees through with little scrutiny.
Right-wing leaders who specialized in preventing Clinton nominees from even getting a hearing are now calling for quick action on the administration's nominees. In an act of astonishing hypocrisy, Attorney General Ashcroft told attendees at this summer's ABA conference, "I know I don't need to tell you that judicial vacancies mean delays in the time it takes to have one's case heard. Justice delayed is justice denied."