Thanks to the GOP landslide, President Clinton is unlikely to achieve any major legislative victories for liberalism during the next two years. But that does not mean the liberal agenda is dead. The Clinton Administration and liberal-left interest groups almost certainly will try to use the federal courts to win through judicial activism results unobtainable through the democratic process. And we can expect the president to move aggressively in nominating judges.
Conservatives, especially on the Senate Judiciary Committee, must be ready for them. If conservative hope to depoliticize the courts, they must be armed not with retaliatory tactics, but with clearly articulated and constitutionally grounded reasons for rejecting inappropriate judicial nominees. Simply put, conservatives should not establish their own political litmus tests for court candidates. Rather, they should be fighting the whole notion of a "political branch" judiciary--and should be refusing to confirm nominees in whom that notion has effectively taken hold.
THE CLINTON BENCH
There are likely to be more than a few opportunities to do so. President Clinton already has appointed a great many federal judges, and will appoint--or certainly nominate--a lot more. Much of the thanks goes to a Democratic-controlled Senate that held up scores of Bush appointments. While the Bush Administration got some of its highest marks from conservatives on the quality of its judicial selections, it also left office with a dramatic number of vacancies--well over 100--waiting to be filled by its successor.
As a result, the first Democratic President in 12 years was able in the next two to name some 140 judges, or over 16 percent of the entire federal judiciary. Meanwhile, attrition has created further openings, yielding a current vacancy figure of about 60. Hence, even if we have reached the mid-point of the Clinton era, much of the Clinton mark on the federal bench will be made in the two years that remain.
This will be true even if this period sees no changes on the Supreme Court. Action at the Supreme Court level, whether it involves a decision or a nominee, garners the most headlines; but it is scarcely where all the action is. Indeed, the real world impact of even the most high-profile Supreme Court pronouncements can often turn on the interests and judgments of the men and women who sit on federal district courts and circuit courts of appeals. It is to these courts that liberal forces will be laboring most feverishly to help appoint activist judges--judges who are poised not to interpret law but to enact social agendas.
WHERE THE ACTION IS
The Supreme Court got lead-story attention, for example, when it announced in the 1991 Oklahoma City case new standards designed to foreclose perpetual federal judicial supervision of formerly de jure segregated school systems. The Court will get the same kind of attention this term when it revisits the issue in the Kansas City case now before it.
Few realize, however, that it is a federal district judge who will make the highly-nuanced "fact" findings that will determine whether the Court's new criteria have been met in any given case. The lower federal court ruling, then, will determine whether ultimate authority over a school district will revert to school board members elected locally for fixed terms, or remain in the hands of a life-tenured federal jurist.
Of greater practical importance is the composition of the federal circuit courts of appeals. These have immediate appellate jurisdiction over decisions of the district courts, with appeals typically resolved by a three-judge circuit panel. Because the Supreme Court can review only a handful of cases each year, for 95 percent or more of all litigants these circuit panels are the de facto "court of last resort."
And their decisions can be profoundly important. Absent supervening Supreme Court authority, a court of appeals precedent is binding on every district court within that geographic circuit, and will commonly have persuasive impact on other circuit and district courts as well. …