The men and women who sit on our nation's federal courts have the power to breathe life into the promise of our democracy. Far from being isolated interpreters of arcane aspects of our laws and Constitution, with one decision, federal judges can change how we work and live with one another — for better, or for worse.
Article II of the Constitution provides the President with the power to nominate federal judges, subject to the "advice and consent" of the Senate. In designing this structure for sharing power between the executive and legislative branches, the founders intended to ensure an independent federal judiciary.
Such independence is critical, since federal judges receive lifetime appointments and are called upon to make important decisions affecting the interpretation and enforcement of the Constitution, federal civil rights laws, and other key protections. Because of this, civil rights advocates have long monitored the integrity of the processes for nominating and confirming judicial and other key federal appointments-insisting that such processes be fair, open, and balanced.
Today, through his judicial appointments, President George W. Bush hopes to appease the far right wing of his party by packing the federal courts with the most conservative ideologues in our nation's legal community. Many of the men and women President Bush has nominated to the federal bench have built their careers at the ideological fringe of the law - calling for tax breaks for universities that practice racial discrimination, gutting Congress's power to pass civil rights laws, eliminating the role of the federal government to protect the rights of workers, and eliminating federal protections for the environment, among other things. Their views are out of the mainstream but consistent with the small band of ideological conservatives dominating the judicial selection process in the White House.
With lifetime appointments, these right-wing judges have the power to change the nation for decades to come.
What is at stake in the fight over judicial nominations is the continued ability of Congress to protect our civil rights and fundamental freedoms: the right to be free from discrimination based on race, national origin, religion, gender, sexual orientation, or disability; the right to organize in a union and be protected by national labor standards; the right to clean air and water; and the right to equal opportunity in employment and education for all Americans. While many have fought for years for these rights, they are not secure without a federal judiciary ready to stand vigilant to protect them.
Americans who care about civil rights, workers' rights, and consumer and environmental protections must wake up to the danger posed by allowing the radical right to control the Third Branch of government. They must demand that the Bush administration nominate and that their senators only confirm judges who are committed to protecting our basic rights and freedoms.
Much of the right wing effort to capture the courts is happening outside of public view. While most people know about the role of the Supreme Court and the importance of a Supreme Court nomination, far fewer pay attention to the lower federal courts. This report, part of a longer term effort of the Leadership Conference on Civil Rights and the Leadership Conference on Civil Rights Education Fund to monitor the federal judicial nominations that affect the state of civil rights in America, chronicles the battle over judicial nominations; the right wing's decades-long effort to capture the federal courts, the law, and the Constitution; and the implications for the civil and human rights agenda in 2004 and beyond.
Chapter I of the Report discusses the early conservative efforts to affect judicial selection. In the 1970s and early 1980s, in response to federal court decisions upholding civil rights, civil liberties and privacy rights, right wing conservatives began to formulate their plan to re-shape our nation's legal landscape to better reflect their agenda. This process began with the creation of a number of policy think tanks and advocacy organizations that now form the intellectual core of the conservative revolution that has reshaped our federal judiciary.
In the 1980s and early 1990s, these groups and their allies, determined to shift the courts' philosophical balance to the right, found willing allies in the White House. For 12 years, the Reagan and George H.W. Bush administrations made a concerted effort to place their stamp on the judiciary and to appease social conservatives who advocated for rolling back civil rights, civil liberties, and privacy advances made during the 1960s, 1970s, and early 1980s.
The men and women nominated in the 1980s and early 1990s are our nation's most conservative judges today. They are leaving an indelible mark on the nation and are arguably the most enduring legacy of the presidencies of Ronald Reagan and George H.W. Bush.
Chapter II of the Report examines judicial nominations and the Clinton administration, and how, to the disappointment of many who advocated the nomination of ideological liberals to counterbalance the ideological conservatives nominated by Presidents Reagan and Bush, President Clinton nominated judicial moderates, by and large.
Despite President Clinton's efforts to work with Senators from both parties, once Republicans gained the majority in 1995, the Senate's most conservative Republicans began to foreclose all avenues to Senate confirmation for many of President Clinton's nominees. Blue slips, holds, and unnecessary debate were the tools most often employed to slow or stop confirmations. This chapter describes the organized attack on President Clinton's nominees, including, among others, Marcia Berzon, Richard Paez, and Ronnie White. In this way, Senate Republicans and their allies worked to undermine the nominations process and preserve judicial vacancies for the nominees of a hoped-for conservative President.
Chapter III of the Report discusses how the Bush administration has been driving the courts to the right, reaching deep into the ideological extreme of his party, and nominating men and women with records of extreme hostility toward the rights of racial and ethnic minorities, women, workers, consumers, individuals with disabilities and many others.
Senate Republicans, in the majority since the 2002 elections, have made clear that they will confirm President Bush's nominees by any means necessary. By late January 2003, the Judiciary Committee under the chairmanship of Senator Hatch, R-Utah, began moving nominees through the confirmation process at a pace that made any effort to scrutinize their individual records impossible. In addition, Chairman Hatch imposed a new blue slip policy designed to limit the longstanding ability of home-state Senators to delay or deny Committee process for objectionable nominees.
In light of a lack of consultation by the Republican majority and the erosion of long-standing Committee rules that would give voice to the Democratic minority, Senate Democrats began to use the one tool left in their arsenal to stop the confirmation of President Bush's most extreme nominees—the filibuster-successfully blocking the confirmation of some of the most extreme candidates. In response, Senate Majority Leader Bill Frist, R-Tenn., proposed a dramatic alteration of long-standing Senate rules, drastically shifting the balance of power in the Senate, and signaling a complete breakdown of the rule of law in the Senate—a proposal referred to colloquially as the "nuclear option."
And in a move sure to escalate the bad will between the administration and the Senate on this issue, President Bush took the extraordinary step of giving recess appointments in early 2004 to two of his most controversial nominees, both of whom had been defeated by filibusters in the Senate-Charles Pickering to the Fifth Circuit and William Pryor to the Eleventh Circuit.
Today, the covenant between the White House and the Senate has been broken, the confirmation process is suffering, and the rule of law is at stake. While the overwhelming majority of nominees are confirmed by the Senate, the process creates bad will and breeds charges of bad faith and political manipulation. The Leadership Conference believes that all who are committed to social justice and equal rights must demand that those appointed to the federal courts have distinguished records as lawyers, are well respected by their peers, have integrity, and a commitment to the Constitution, including assuring equal rights and equal opportunities for all.
The report concludes with a recommendation that the President and Senate leaders agree on a fair-minded and neutral process that would identify the most qualified jurists for appointment to the federal courts. In addition, because the Constitution makes clear that the selection of federal judges should be done with the cooperation of both the U.S. president and the Senate, this process should involve both branches of government and should stress the need for bipartisanship. Beyond the statistics and political battles, something of far greater importance is at stake-the integrity of the confirmation process, the independence of the judiciary, and the courts as a hopeful refuge for justice, equality, and fairness. These are not lofty ideals divorced from the everyday lives of American families. The federal courts—and the men and women who serve there—affect us all. Every person subject to the courts' decisions deserves a cooperative confirmation process that ensures a vibrant and responsible judiciary.