President Bush, the Senate and the Federal Judiciary: Unprecedented Situation Calls for Unprecedented Solution

Introduction

In his response to the aftermath of the September 11 terrorist attacks, President George W. Bush has been and will continue to be faced with many crucial decisions that will define his presidency and shape the future of the nation. Among the far-reaching choices he must make in the coming weeks and months is whether he will provoke intense partisan conflict over the future of the federal judiciary by nominating and pushing for votes on predominantly right-wing ideologues to these lifetime appointments, especially to the federal appeals courts, or whether he will engage in the kind of serious bipartisan consultation and give-and-take that he has conducted more frequently during the past month.

In September, the editorial page of the Wall Street Journal urged the president to take advantage of his current popularity and push a right-wing agenda through Congress, including far-right judges. In early October, Senate Minority Leader Trent Lott threatened to delay action on appropriations bills unless Senate Democratic leaders made a commitment to confirm Bush administration judicial nominees more swiftly. Senate Republicans' decision to make good on that threat became clear on October 15, when they blocked action on a foreign aid bill. Stalling the appropriations process, already behind schedule after the terrorist attacks, is a clear break with the bipartisanship that had characterized much of the congressional action since September 11.

Senator Lott and others have begun a public relations campaign suggesting that Bush administration judicial nominees have been treated unfairly. Those claims are demonstrably untrue. They ignore both the reality of the Senate Judiciary Committee's workload since the September 11 attacks and the pace with which Senate Judiciary Committee Chair Patrick Leahy has conducted hearings since Republicans stopped delaying Senate reorganization in the wake of Senator James Jeffords' break with the GOP.

Senator Lott's recent efforts are, in fact, just one element of the long-term campaign by right-wing legal and political forces to turn back the clock on American constitutional law and overturn decades of Supreme Court precedents and social justice progress. For six years, Senate Republicans, many of whom now call for immediate votes on Bush administration nominees, waged an unparalleled, and unfortunately successful, stalling campaign to block Clinton administration judicial nominees, especially for the federal appeals courts.

That set the stage for the first eight months of the Bush administration. With a far-right legal team in the White House and Justice Department dominating the judicial selection process, the first set of administration judicial nominees was clearly in accord with the right's campaign for ideological domination. If the President does not now pursue a genuine bipartisan path, the only thing preventing the far right from completing its takeover of the entire federal judiciary will be the U.S. Senate.

Right-wing advocates inside and outside of government are urging President Bush to use the bipartisan support he has been given in the wake of the terrorist attacks to complete the campaign for ideological dominance over the entire federal judiciary.

Given how much is at stake, Senators must fulfill their constitutional role of advice and consent, resist pressure from right-wing administration or Senate leaders to speed confirmation of nominees without serious consideration, and refuse to allow the critically important circuit courts of appeal from becoming dominated by right-wing ideologues who are not committed to the protection of civil rights and constitutional liberties.

President Bush and members of the U.S. Senate must recognize that we face an unprecedented situation in the federal judiciary, one that calls for an unprecedented bipartisan solution.

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