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

Vacancies

A clear goal of this deliberate strategy to block President Clinton's judicial nominations was to leave as many seats vacant as possible so that they could be filled by a Republican president. The strategy worked all too well, as there are now over 100 judicial vacancies to be filled by President Bush, more than 30 of those on the appeals courts.

Currently, eight of the 13 Circuit Courts of Appeals have majorities appointed by Republican presidents. If President Bush succeeds in filling the current vacancies, Republican nominees will control 11 of the 13 benches of the circuit courts of appeals. Projections indicate that if all anticipated vacancies on the appellate courts over the next four years are filled by Bush nominees, the majority of judges on every single one of the nation's thirteen circuit courts of appeals will be made up of judges appointed by presidents of a single political party, an unprecedented situation. The party affiliation of the nominating president would be less of a concern if President Bush planned to nominate mainstream judges committed to a view of the Constitution that would earn them genuine bipartisan support. But that is not what has happened so far.

In early 2001, President Clinton renominated nine of the individuals whose nominations had lapsed because of the delays in their processing, such as Helene White, Enrique Moreno, James Wynn. Some commentators expressed hope for support of these nominees by President Bush, and confirmation by the Senate. Unfortunately, the President did not take this step. Instead, one of President Bush's first public actions with respect to judicial nominations in March, 2001 was to withdraw President Clinton's nominees.

Also in March, President Bush ended the role that the American Bar Association had played for 50 years, for presidents of both parties, in screening the qualifications of potential nominees prior to their nomination. The nonpartisan ABA has been essentially replaced by the Federalist Society, a right-wing legal organization devoted to radically altering American law and government through the courts.

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