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

Background

Before the September 11 attacks, administration officials and other right-wing leaders had begun to step up their pressure on the U.S. Senate to speed confirmation of President Bush's ultraconservative judicial nominees. Earlier in September, a large coalition of Religious Right organizations launched an advertising campaign urging President Bush to nominate, and the Senate to confirm, only so-called "strict constructionist" judges who adamantly oppose reproductive rights for "every single" judicial vacancy. Right-wing legal activists took to the airwaves and the pages of the nation's newspapers to accuse the Senate of unfairly delaying action on President Bush's judicial nominees.

As a senator, John Ashcroft helped lead the six-year stalling campaign that blocked an unprecedented number of Clinton nominees to the circuit courts of appeals for as long as four years. As Attorney General, however, he has had the rather astonishing audacity to profess concern to members of the American Bar Association that judicial vacancies may slow access to the courts, making use of a legal principle he had long ignored, "Justice delayed is justice denied."

The GOP filibuster on foreign aid legislation and threats to hold up other bills is a clear signal that the brief break in the right-wing campaign on judicial nominations has ended. The record is clear that many of the people now clamoring for swift Senate action - like Ashcroft, Orrin Hatch, Jon Kyl, Jeff Sessions and others - were doing everything possible to stop the confirmation process during the Clinton administration. Then, senators brushed aside concerns about vacancies while erecting a partisan blockade against what objective observers deemed the most highly qualified group of judicial nominees in recent decades, without giving them a vote, or, in many cases, even a hearing. Senate GOP obstructionism paid off in an unprecedented opportunity for right-wing judges to dominate the entire federal appellate court system.

In fact, by the end of President George W. Bush's four-year term, all 13 of the federal appeals courts could be controlled by judges appointed by presidents from a single political party. The party label itself is not as troubling as the evidence that this administration's legal team has intended - at least until now - to fill many circuit court vacancies with far-right ideologues rather than mainstream judges.

While it is true that widespread judicial vacancies can slow access to justice, vacancies are not the most grave and immediate crisis in the federal judiciary. It is, rather, the potential domination of the federal appeals courts and the U.S. Supreme Court by judges eager to overturn scores of Supreme Court decisions and decades of precedent affecting civil rights and civil liberties, reproductive choice, environmental protection, and many other areas of law.

This analysis documents the largely successful effort by ultraconservatives in the Senate to block judicial nominees from 1995 to 2000, particularly at the appeals court level. It includes new statistics on the appeals courts, and an assessment of recent charges about the handling of its nominees by the Senate Judiciary Committee. It also offers recommendations for dealing with federal judicial nominations during this critical period in a way that can promote bipartisanship while protecting Americans' rights and liberties.

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