Looking forward to the remainder of 2001 and beyond, significant perils lie ahead for judicial independence and for the federal and state judiciary as a result of future right-wing activity. At the state level, events like the post-election decisions of the Florida Supreme Court have made the importance of state court and state court decision-making clear to right-wing activists. With state court judges often subject to election, re-election, and varying legislative mechanisms governing appointment and retention, the opportunities for right-wing pressure tactics are plentiful at the state level. One recent article categorized the activity in Florida this year as an effort to “punish the Florida Supreme Court for being too ‘liberal.’”47 As demonstrated in Florida this year and in the apparently successful effort to push an Idaho supreme court judge to change her vote last year, right-wing groups are likely to continue to try to “punish” judges whose decisions they disfavor and pressure other judges to vote in accord with far-right ideology.
At the federal level, the far right’s “Courting Justice” campaign has offered a telling insight into the right’s agenda regarding the future of the judiciary and judicial independence. The campaign explained that “the federal judiciary [was] the top prize in [last] year’s election…. The next president will have a virtually unprecedented opportunity to appoint judges so as to tip the judicial balance decisively in one direction of the other.”48 Even before the first judicial nomination by the Bush administration, actions such as the exclusion of the ABA from the nominating process and the prominence of Federalist Society members in the Justice Department and the White House Counsel’s office strongly suggest that the administration has received the message. Given that the Justice Department and the White House Counsel’s office play vital roles in the nomination and confirmation of federal judicial candidates, there is a significant concern that potential federal court nominees will have to demonstrate a commitment to the conservative ideology favored by the Federalist Society and other right-wing organizations, particularly if they are to be nominated for the federal appellate courts and the Supreme Court.
The stakes for Americans could not be higher. As documented in PFAWF’s report Courting Disaster last year, the addition of just one or two more right-wing justices in the mold of Antonin Scalia and Clarence Thomas to the Supreme Court could seriously curtail or abolish fundamental rights that millions of Americans take for granted. More than a hundred Court precedents in such areas as reproductive freedom, civil rights and discrimination, religious coercion and liberty, free speech and censorship, and access to justice would be threatened. Lower court judges in the same mold would similarly jeopardize our rights and freedoms. The redoubled right-wing effort to shape the federal judiciary in their image will demand vigilance and action by all Americans in the months and years ahead.