Former Reagan Justice Department official Clint Bolick says frankly, "Everyone on the Right agreed in 2000 that judicial nominations were the single most important reason to be for Bush." And Democratic senator Charles Schumer says, "They realized that if they took over the one unelected part of the government, they could govern for a generation." -- quoted by Eric Alterman and Mark Green
Respected legal scholar and political moderate Cass Sunstein, a professor at the University of Chicago Law School, told a group of Senate Democrats in May 2003 that Bush's judicial nominees, far from being "Constitutional constructionists," are in fact "closer to the Republican platform than those of the framers." She continued, "They want to cut back on what government is allowed to do -- whether it's campaign-finance legislation, or affirmative action, or the right to sue for environmental violations. This Supreme Court has struck down more federal legislation at a higher annual rate than any other in the last half-century. The new people want to strike down more. It's a radical agenda. We looked at thousands of opinions and we saw that Republican nominees really are different from Democratic nominees. And when you get three Republican nominees sitting together they get really conservative. We had a large enough sample, so that we could see proof of this in affirmative action, campaign finance, the Americans with Disabilities Act, judicial review of environmental regulations, and sex discriminations." --quoted by Eric Alterman and Mark Green
Eric Alterman and Mark Green note that currently (2004) the Supreme Court has a 7-2 majority of Republicans over Democrats. Of the 13 federal appellate courts, eight have a Republican majority, three Democratic, and two are evenly split. By the end of the year, with Bush nominees filling the current vacancies, Republicans will control 11 appellate courts, and with more retirements in the offing, could control all 13 by year's end. Unlike Clinton, who routinely consulted with Republican leaders such as Orrin Hatch and Trent Lott, and made a point of periodically nominating more conservative judges to the federal courts, Bush has refused to consult in any but the most perfunctory way with Democratic leaders, and has forced a raft of far-right, extremist judges down the throats of the Senate confirmation committees. One of his most egregrious moves is, in late 2004. to renominate five of the most objectionable judges found unsuitable by the Senate confirmation committee. Although Bush insists that "the role of a judge is to interpret the law, not to legislate from the bench," his nominees are marked for just such practices.
Case in point: Priscilla Owen, a Texas Supreme Court justice who won notoriety by protecting her corporate campaign donors from lawsuits brought against them by their employees and by reinterpreting the law to add new barriers to reproductive freedoms. In the last case, Bush's own counsel, Alberto Gonzalez, criticized her for perpetrating "an act of judicial activism [which would] create hurdles not found in the words of the statute." It is worth noting that Clinton, who by and large appointed centrist judges, avoiding extremists from the left and right, experienced one of the worst records in having his nominees approved by Congress of any president in recent memory. The Republican-led Congress only confirmed 64% of his nominees, routinely using parliamentary rules to block nominees from even getting before the confirmation committees. In contrast, Bush has had 94% of his nominees approved. The Democratic-controlled Senate took an average of 77 days to approve nominees from the first Bush presidency; under the Republican-controlled Senate during Clinton's terms, that average ballooned to 231 days in 1997-98, and 247 in 1999-2000. Orrin Hatch's Judiciary Committee often held up nominees for years -- four years for Richard Paez and three for William Fleischer -- and held up nominee Elena Kagan for three years until she withdrew her nomination to become the Dean of Harvard Law School. Although Democrats have, as of the middle of 2003, approved 132 judges and filibustering only 3 (radical right-wing ideologues Owen, Miguel Estrada, and William Pryor), Bush has declared the Democrats' "obstructionism" to be "a crisis," and accused Senate Democrats of "causing delays for citizens seeking justice," an egregrious example of Bush doublespeak since the vacancy rate for judges was at its lowest in a decade, and Bush's own policies would radically cut back on citizens' ability to file class action and other lawsuits.
Senate Majority Leader Bill Frist will spearhead a Senate fight to change the long-standing rule that mandates 60 votes needed to stop a filibuster to a mere 51, a fight that will finally end in a compromise with the rule remaining as written if Democrats would agree not to exercise their option except under extreme circumstances. Author Robert Cato says that rule change would transform the Senate into a smaller version of the House of Representatives, radically disenfranchising the minority for what the New York Times terms "immediate partisan gain." As confirmation fights loom for the replacements of retiring Supreme Court justices Sandra Day O'Connor and William Rehnquist, we remember that Clinton sought the advice and consent of Republicans before naming Stephen Breyer and Ruth Bader Ginsberg to the high court, but Bush is far more likely to opt "for confrontation over consensus." -- Eric Alterman and Mark Green
The current scandal over the US attorney firings, and the presumptive attempt by the Bush administration to politicize the US judiciary, is being documented in the various 2007 month-by-month pages of this site.