Ordering the Courts: Right Wing Attacks on Judicial Independence in 2000

A Report by People For the American Way Foundation, April 2001

Introduction

Over the last several years, right-wing groups and political leaders have stepped up their attacks on judicial independence at both the state and federal levels. Organizations like the Christian Coalition, the Eagle Forum and the Free Congress Foundation, as well as House Majority Whip Tom DeLay and others, have called for the impeachment of federal judges, delayed action on nominations for years, targeted state judges up for re-election, and engaged in various other actions that undermine the independence of the judiciary.

Individually, some of these actions can be defended as efforts by citizens to exercise their rights to influence judicial selection and public policy within current political structures. Collectively, however, these efforts add up to a concerted attempt to impose right-wing orthodoxy on judges at the state and federal level and to punish judges who deviate from that standard. Nothing could more seriously threaten what Chief Justice Rehnquist has called the "crown jewel” of the American system – the independent judiciary that decides each case on its merits to help protect individual rights, as opposed to courts that rubber-stamp executive and legislative decisions in accord with ideological litmus tests.1 This report will examine right-wing efforts in 2000 to reshape courts at both the federal and state levels, with a look ahead to 2001-2002.

Overall, right-wing attacks on the judiciary achieved a number of troubling successes in 2000. Literally dozens of nominees for the federal bench were blocked in the Senate without a vote, sometimes without even a hearing, despite delays of two years or more. A Florida measure that would have enhanced judicial independence was defeated at the polls, and elsewhere, right-wing attacks on state judges succeeded in unseating them. In one case in Idaho, observers suggested that such an attack might have influenced a sitting judge to change her vote in a controversial case to avoid similar attacks in the future. Other rightwing efforts failed, as voters and legislators rejected some extremist tactics and proposals.

2001 has already seen significant activity. President George W. Bush recently withdrew the last of President Bill Clinton’s judicial nominees and eliminated the American Bar Association’s role in evaluating the qualifications of all future federal judicial candidates, as far- right groups have vociferously advocated. These actions make it clear that the right wing’s influence is rendering the future of the independent judiciary cloudy at best.

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