Recently, the media have begun to look more closely at the Federalist Society's influence in the selection of judicial nominees by the Bush administration. The Society's behind-the-scenes role is not new. Society members influenced judicial nomination decisions in the Reagan and the elder Bush's administrations.116 Roger J. Miner, a senior federal appeals court judge appointed to the bench by Ronald Reagan, observed this role: "Lee Liberman [Otis], a founder of the new Federalists and now Assistant Counsel to the President, examines all candidates for federal judgeships for ideological purity. It is well known that no federal judicial appointment is made without her imprimatur."117 Otis-who co-founded the Society's University of Chicago chapter in 1982-screened judicial candidates and worked closely with Society leader C. Boyden Gray, White House counsel under President George H.W. Bush.118 As a former Supreme Court law clerk has observed, membership in the Society "became a prerequisite" for law students seeking clerkships with many Reagan judicial appointees, as well as for top positions in the Justice Department and the White House.119
During the Reagan years, the Society was just beginning to hit its stride. Today, the organization has a sophisticated network that gives it major influence in shaping important policy decisions and filling top positions in government and on the courts. Federalist Society members today hold key positions in the Justice Department and the White House with direct responsibility for selecting federal judicial nominees. These include Attorney General John Ashcroft, Assistant Attorney General Viet Dinh, Deputy White House Counsel Tim Flanigan, and Associate White House Counsel Brett Kavanaugh.
Society members both within and outside of the Bush administration recognize the unique opportunity that now exists to shape the federal courts.120 In fact, an article on the Society's Web site attacking Roe v. Wade and other specific rulings asks: "What are we to do about such judges? Impeachment is sometimes mentioned, but remains impractical. It appears that our best hope continues to be … working to ensure the appointment of justices and judges who respect the constitutional limits of their own authority [emphasis added]."121
There are now more than 100 vacancies on the federal courts, many on the U.S. Courts of Appeals and many the direct result of a Republican Senate's refusal to vote-or even to conduct hearings-on President Clinton's nominees. Indeed, right-wing Senators Trent Lott, Jon Kyl, Jeff Sessions, Hatch, and Ashcroft blocked many Clinton nominees. Only one of Clinton's judicial nominees was defeated in an up-and-down vote on the Senate floor. Instead, Senate Republicans effectively ended these nominations by preventing any vote. According to data from the Congressional Research Service, from 1995 through the year 2000, the Republican-controlled Senate refused to act on an astonishing 37 percent of President Clinton's nominees to the U.S. Courts of Appeals.122
In addition to the large number of vacancies in the U.S. Courts of Appeals, we are now in the longest interval between Supreme Court vacancies in 178 years. For this reason, most court-watchers expect President Bush will have an opportunity to appoint one or more Supreme Court justices over the remaining years of his administration. Filling just the current and projected vacancies on the federal courts over the next four years with right-wing judges in the mold of Clarence Thomas and Antonin Scalia would fundamentally alter the entire federal judiciary and endanger bedrock constitutional and civil rights throughout the country for decades to come.
As People For the American Way Foundation extensively documented in its 2000 report, Courting Disaster, a Supreme Court majority that shared the views of Justices Scalia and Thomas-and the Federalist Society-would put at grave risk many of the most fundamental rights and liberties that Americans have come to take for granted. A Scalia-Thomas Court could overturn more than 100 key precedents protecting a wide range of civil and constitutional rights. Given that one out of three decisions in the most recent term of the Supreme Court were decided by 5-4 votes, future nominees will play a pivotal role.123 In short, a Scalia-Thomas majority could overturn, in whole or in part, Supreme Court precedents on the right to privacy, reproductive freedom, civil rights, religious liberties, environmental protection, worker and consumer rights, and many other fundamental rights.
James Piereson, executive director of the right-wing John M. Olin Foundation, recently assessed the progress of groups such as the Federalist Society. "While Reagan was conservative," Piereson said, "he didn't have this network to turn to when he was filling jobs. It is satisfying to see all these Federalist Society members in the White House."124 And those Society members have been hard at work, laying the groundwork for appointments that could dramatically reshape the federal judiciary.