As this report has documented, Attorney General John Ashcroft is having an enormous impact on Americans' rights and freedoms in a broad range of areas. But his most far-reaching, long-lasting, and potentially devastating impact on our Constitution and laws could be through helping to pack the federal judiciary with judges eager to overturn decades of Supreme Court precedents .
Through the Justice Department's role in recommending, interviewing and reviewing potential judicial nominees, the attorney general plays an important role in determining what sort of judges will preside over the federal judiciary. Furthermore, members of the ultra conservative Federalist Society, now ensconced in the Justice Department and White House legal counsel's office, oversee much of the screening and selection processes for federal judges. The Federalist Society provides much of the legal and intellectual firepower for right-wing efforts to transform and fundamentally remake the American legal system.
The very real possibility that the far right's ideological hostility to civil rights, environmental protections and government regulations could come to dominate the federal judiciary is a major threat to Americans' rights and freedoms. In 2000, People For the American Way Foundation published Courting Disaster, which analyzed the concurring and dissenting opinions of the court's most right-wing justices, Antonin Scalia and Clarence Thomas, to determine the consequences of additional right-wing appointments to the Court. The report concluded that a Scalia-Thomas majority - just one or two votes away - could overturn more than 100 Supreme Court precedents. Many right-wing legal activists are candid that they are out to overturn the New Deal and much of the bipartisan legal and policy accomplishments of the past 65 years.
Given how much is at stake, achieving ideological dominance of the federal judiciary is the Right Wing's primary goal. As attorney general, Ashcroft is playing a key role in pursuit of that goal, just as he did as a senator.
At the center of the Right Wing's judicial strategy are the federal appeals courts. The vast majority of federal cases never make it to the Supreme Court, but are decided by lower federal courts. In 2000, for example, the federal appellate courts decided more than 27,000 cases, many of which were important rulings on privacy, the environment, and human and civil rights. This is in sharp contrast to the Supreme Court, which handed down only 87 opinions last term.89 In effect, many appeals court rulings stand as the final word governing the law for millions of Americans in their regions.
As a senator, Ashcroft played a central role in the right-wing campaign to slow the approval of President Clinton's appeals court nominees to a crawl. Given Ashcroft's central role in this blockade, his efforts as attorney general to force quick action on Bush nominees - and his comments that "justice delayed is justice denied" - appear remarkably hypocritical.90 It is equally remarkable that he made some of those comments at an appearance before the American Bar Association, which the administration ousted from the pre-nomination screening role of judge's competence and character, a role the ABA had played for presidents of both parties for the past 50 years. Requiring the ABA to conduct its reviews after nominees are made public builds additional delays into the confirmation process.
The ideological blockade thrown around the appeals courts by Ashcroft and others, with vigorous support from right-wing activist groups, was stunningly successful. Between 1995 and 2000, 35 percent of Clinton's appeals court nominees were not even allowed to come up for a vote; 45 percent went unconfirmed in the Congress in which they were nominated. Right-wing groups hope the White House will take advantage of the vacancies their Senate allies perpetuated by filling them with right-wing ideologues. Republican-nominated judges currently hold a majority on seven of the 13 circuit courts of appeal. If all President Bush's current nominees are approved, such judges will make up a majority on 11 circuit courts. And by the end of 2004, Republican-appointed judges could make up a majority on every one of the 13 circuit courts of appeals.
As we have said, that is an unprecedented situation that calls for an unprecedented solution. President Bush must consult with Congress in a bipartisan fashion and nominate more moderate mainstream judges that can win bipartisan support. Unfortunately, the evidence is that Ashcroft, other members of the administration, and right-wing senators are choosing to mount aggressive and deceptive public relations campaigns to try to push the Senate into approving Bush nominees without giving careful consideration to their records.