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

High Stakes

The extraordinary efforts made to keep President Clinton's appointees off the federal appeals courts and the Religious Right's all-out efforts on behalf of then-candidate George W. Bush both reflect the enormous impact that this President's judicial appointees will have on American law and society.

The determination of right-wing advocates to pack the federal appeals courts with nominees who share the judicial philosophy of Supreme Court Justices Antonin Scalia and Clarence Thomas poses a very serious threat to the civil and constitutional rights of all Americans. That threat, of course, is even greater regarding nominees to fill future vacancies on the U.S. Supreme Court, which is the ultimate target of the Religious Right and its political allies. But the appeals courts are also vitally important institutions. Given the small percentage of cases that are accepted for review by the Supreme Court, appeals court decisions often stand as definitive rulings affecting millions of Americans' lives.

The U.S. Supreme Court is narrowly divided on a range of fundamental constitutional issues. The conservative 5-4 majority has wielded a renewed "states' rights" theory in a series of devastating rulings restricting the power of the federal government to protect citizens' rights from abuse by the states. But the Court's most far-right justices, Antonin Scalia and Clarence Thomas, want to push the Court even further to the right, overturning seven decades of precedent on reproductive rights, religious liberty, environmental protection, voting rights, and other civil rights protections for racial and ethnic minorities, women, people with disabilities, gay men and lesbians, older Americans, indeed, all Americans. With just one or two new justices in the Scalia-Thomas mold, they will be able to turn back the clock in all these areas. In fact, a Supreme Court with a Scalia-Thomas majority could overturn more than 100 important precedents.

Right-wing judges already dominate some circuit courts of appeals, where many are engaged in a deliberate campaign of right-wing judicial activism, seeking to extend some of the Court's recent "states' rights" rulings and to challenge key Supreme Court precedents protecting civil rights and civil liberties in an effort to push the current Supreme Court to overturn those precedents. Appeals court judges are often tapped to fill vacancies on the high Court.

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