SUPREME COURT BLUES

Defeating the Rightwing Tide in the Federal Courts
by Meteor Blades
Sun Oct 10th, 2004 at 20:42:30 GMT

Many Americans who had in the past opined that there was at best a paper-thin difference between Republicans and Democrats joined the Anybody But Bush club for one reason alone: They were worried about the precarious balance of power on the Supreme Court. A Democrat in the White House, any Democrat, would guarantee that no new Antonin Scalias or Clarence Thomases or William Rehnquists would be appointed in the next four years. Thus were objections – even significant objections - to this candidate or that one put aside.

Not that there was any scarcity of other fuel for the ABB locomotive. From foreign policy to tax policy, from the economy to health care, from the environment to social issues, the Bush Administration had engendered more ferocious animosity than any Republican President since Nixon.

But some holdouts seeking a Democrat who would embody their perception of the perfect candidate argued that all those Bush policies could be reversed, the impacts ameliorated even if we had to wait until 2009 to do it. But, whether one agrees with such arguments or not, they fall definitively apart over the status of the Supreme Court. Choices for new lifetime justices now could influence the course of American politics until mid-century. Rehnquist, for instance, has served on the court for 33 years. Seven of the nine current justices were appointed by Republicans.

As Kynn notes in his excellent Diary on Dred Scott, we’ve got a President committed to nominees who would curtail reproductive rights. And, whatever his demurrers about no litmus tests, we know from previous statements that Bush would nominate far right justices whose damage would extend well beyond what they decide on abortion.

The Supreme Court is hardly the only concern, however. Typically, the Court hears fewer than 100 cases each year. Thousands are heard in the federal appellate courts, which means these judges have the final say on constitutional questions. Ten of the 13 federal circuit courts are controlled by Republican appointees, and two others are close. On the federal district courts, 356 of the 680 judges are Republican appointees. They, of course, are also appointed for life. You can see the breakdown at the excellent Alliance for Justice site.

You don’t have to read far in the mainstream media to find a familiar theme: the courts are controlled by liberals. In fact, however, from 1969 to 2004, Republican presidents appointed 975 federal judges and Democrats appointed 615.

Despite all the whining about blocked confirmations of Bush’s federal court nominees, the Senate has confirmed 226, 88% of those put forward. The current vacancy rate in the federal court system is 2%, 28 judges, the lowest in 20 years. In the last six years of Bill Clinton’s terms, thanks to the machinations of Utah Sen. Orrin Hatch and others, 35% of the nominees were blocked.

How big a difference does it make? Plenty. Just one example. The non-partisan Environmental Law Institute studied the 325 cases brought in district and appellate courts under the National Environmental Policy Act from January 21, 2001, through June 30, 2004. Some excerpts from its report:


JUDGING NEPA: A “Hard Look” at Judicial Decision Making Under the National Environmental Policy Act

■ federal district court judges appointed by a Democratic president ruled in favor of environmental plaintiffs just under 60% of the time, while judges appointed by a Republican president ruled in their favor less than half as often – 28% of the time;

■ district judges appointed by President George W. Bush have an even less favorable attitude toward environmentalists’ NEPA suits, ruling in their favor only 17% of the time;

■ when industry or pro-development interests sue under NEPA, the results are almost exactly reversed: judges appointed under a Democratic administration rule in favor of pro-development plaintiffs 14% of the time, while Republican-appointed judges rule in favor of such plaintiffs almost 60% of the time.

An even more striking pattern can be discerned in the federal circuit courts, in which three-judge panels decide appeals from the district courts. Here, the study found that:

■ circuit court panels with a majority of judges appointed by a Democratic president (those with two or three such judges) ruled in favor of environmental plaintiffs 58% of the time.

■ In contrast, Republican-majority panels ruled in favor of environmental plaintiffs just 10% of the time – only one-sixth as often.

These results suggest that judges’ political affiliations often have a pronounced impact on their disposition of NEPA claims.This is especially significant given the federal judiciary’s central role in defining and enforcing NEPA’s obligations.The results call into question whether NEPA is meeting its core purpose of providing a transparent environmental impact assessment process that generates information about proposed federal actions regardless of which administration proposes them, who objects to them, or who hears any dispute about them.
Happily, we now have something far better going for us than ABB, a good candidate with an even chance of making another Bush a one-term president. Instead of merely holding the line, we can count on reversing the tide of rightwingery in the federal courts