Lame Duck Gambles: Beware of Court Appointees

Lynne Glasner

If you think Senate Majority Leader Harry Reid is keeping Congress in session solely to deal with our economic crisis, think again. He's also trying to limit more damage to the judiciary and prevent lame-duck Bush from further stacking the courts.

If you thought Senate majority leader
Harry Reid is keeping Congress "officially" in session solely to
deal with our economic crisis, think again. He’s also trying to limit
more damage to the judiciary and prevent lame-duck Bush from further
stacking the courts.  

While there was much ink spilled over
the US Attorney scandals and the Bush Administration habit of making
political appointments to civil service positions, less attention was
paid to the fact that President Bush appointed more than 30 percent
of the current federal judiciary. That so many vacancies occurred during
Bush’s eight years in office is hardly news, but the degree to which
they reflect Bush’s effort to impose the right-wing/conservative ideology
should set off the alarms.  

Without much fanfare, Bush appointed
316 conservative judges to the federal courts. In 10 of the 13 federal
circuit appeals courts, the majority of the judges are now Republican appointees.
In all, these appointments have had a bone-chilling effect on the federal
courts, changing the balance of power in ways that are little noted
until a legal case winds its way into the national media. 

To a large degree, stacking the courts accounts for the success of
right-wing anti-choice groups and their ability
to erode Roe v. Wade. Their success in South Dakota is largely
attributable to judicial appointments.

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Indeed, it is in the
Eighth Circuit federal appeals court where the South Dakota abortion fight is being played
out. It was this court
that ultimately let stand a South Dakota
state law, challenged by Planned Parenthood, that not only severely restricted
abortion, but also applied measures of authoritarian rule for doctors and how
they are to address their patients.

The Eighth Circuit ruling was a 7-4
decision, illustrating the reach of Bush’s hand in shaping policy
through the executive power of appointment and the unitary power amassed
from lack of strong oversight. Six of the seven judges in the majority
opinion are Bush appointees. Two are members of the Federalist Society
(a favorite stomping ground for conservatives); one worked as an associate
for Kenneth Starr during the Whitewater investigations; two had no previous
judicial experience; one worked as a former state director of the Rutherford
Institute, the organization that filed suit for Paula Jones against
President Clinton; and three had worked on Bush/Cheney campaigns. All
of these appointments were confirmed by the Senate with little notice
by the media. 

Probably the most openly anti-choice
judge now serving in the Eighth Circuit is Judge Lavenski Smith. Smith
was appointed by Bush a few days prior to 9/11. His appointment was opposed
by NARAL, Alliance for Justice, the National Abortion Federation, Planned
Parenthood, and the National Council of Jewish Women, not only because
of his extreme anti-abortion activism, but also because of his mediocre
qualifications. (The ABA gave him a Q rating, which is like getting
a ‘C.’) Nonetheless, he was confirmed by the Senate in July 2002
by a voice vote without opposition. 

Smith was appointed to the Arkansas
Supreme Court by Gov. Mike Huckabee in 1999, not a surprising pick given
Huckabee’s well-known, strong opposition to abortion rights. Smith
had represented a group in Arkansas, the Unborn Child Amendment Committee,
that tried to challenge the use of Medicaid funds to pay for an abortion
in a state hospital. The case was particularly egregious since it involved
a young teen who was impregnated by her stepfather. Smith lost the
case in the Arkansas Supreme Court.  

With only two of the
eleven judges on the Eighth Circuit Appeals Court appointed by a Democrat, the
court is now one of the most conservative in the country. This is likely part
of the reason that the anti-choice groups keep going back there to try to chip
away at Roe. The anti-choice groups
will not be deterred by the vote against their latest ballot initiative, Initiated Measure 11. Had it
passed, they expected it to be challenged and brought to the Eighth
Circuit; in fact, that was the point. Anti-choice forces push laws that constitutionally challenge Roe; meanwhile, they work to pass state trigger laws that would outlaw abortion upon the overturn of Roe, comprising the second prong of anti-choice strategy.

Bush’s efforts to issue executive orders
that will further deregulate limits on corporate behavior and environmental
destruction have been widely reported. So has Obama’s strategy to derail some of those efforts, including
overturning the global gag rule. But Obama can’t wave a magic wand
and disappear the lifetime appointment of sitting federal judges; they
can be removed only by impeachment, a rare occurrence. Decisions made
by these appellate courts set precedents for multiple states, making
them battlegrounds for right-wing litmus tests. It’s also worth noting
that all of the current Supreme Court justices were serving as judges
in one of the federal circuit courts when nominated. 

While it is likely that Obama will
get to select at least two new Supreme Court Justices, choices that
will have enormous consequences, we shouldn’t forget about the federal
appeals courts, the last step before a case gets to the Supreme Court.
Most cases never get to the Supreme Court, ending up in one of the federal appeals
courts where approximately 28,000 cases per year are decided. The best
Obama can do is to appoint more honest brokers to the judicial bench
to fill the current three dozen federal district-court and 15 appellate
court vacancies (none in the Eighth Circuit), and hope that they will
provide a counterbalance to the Bush legacy.  

Given Obama’s background and style,
he is likely to make reasonable choices and his nominations are likely
to be highly qualified. But abortion is only one of many issues that
come before these judges and only one of many factors that will weigh
on his choice of nominee. And we don’t know the degree to which right-wing
opposition will assemble to pressure Congress to start bloviating and
filibustering to derail a new president with a big agenda.  

We also don’t know if or how Bush
will attempt to fill any of these vacancies before January 20 rolls
around. Bush could appoint "acting" judges to the open positions
without submitting their names to the Senate for confirmation. According
to the Vacancies Reform Act (1998), judges so appointed can remain in
these posts for 210 days and would have the same legal authority as
if they had been confirmed by the Senate. Then, when a nomination is
made and forwarded to the Senate, the interim nominee can remain in
that position for another 210 days or until the new nominee is confirmed. 

Thus, Sen. Reid has not recessed the
Senate, scheduling meetings every few days so that it is officially
in session. As long as two or more Senators are present, they can immediately
adjourn until the next meeting. If Congress can keep this up, they will
prevent further Bush packing of the courts and Obama will get to make
these judicial appointments.  

It is in the federal circuit courts
that the reach of the unitary executive may leave an enduring footprint
with little public notice. When Bush submitted nominations for the Supreme
Court, the Republicans publicly accused the Democrats of imposing a
litmus test and advocating judicial activism if they objected to the
nominee. It is true that judicial activism is alive and well, but the
usual suspects are not "liberals" legislating from the bench. This
is but another example of Republican projection.  

The well-funded anti-choice groups
have been successful at helping to elect strong anti-choice candidates
at the state level and pressuring state legislatures to enact sometimes
draconian bans on abortion. It is but one of their tactics. When a state
votes to make abortion illegal, it opens up Roe v. Wade to legal
challenge. The anti-choice folks know this and will continue to try to
get the Supreme Court to hear further challenges to Roe before
a President Obama has the opportunity to appoint any new justices to
the Supreme Court. Bush being a risk-taker and decider may just opt
to try and squeeze in a few more interim appointments. Sen. Reid has
lived in the gambling state of Nevada all his life. The question is,
how long will he play Texas Hold ‘Em?

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