The Right-Wing Assault: What's at Stake, What's Already Happened and What Could Yet Occur. (Court Packing)

By Sunstein, Cass R. | The American Prospect, March 2003 | Go to article overview

The Right-Wing Assault: What's at Stake, What's Already Happened and What Could Yet Occur. (Court Packing)


Sunstein, Cass R., The American Prospect


Since the election of President Reagan, a disciplined, carefully orchestrated and quite self-conscious effort by high-level Republican officials in the White House and the Senate has radically transformed the federal judiciary. For more than two decades, Republican leaders have had a clear agenda for the nation's courts: to reduce the powers of the federal government; to scale back the rights of those accused of crime; to strike down affirmative-action programs and campaign-finance laws; to diminish privacy rights, including the right to abortion; and to protect commercial interests, including commercial advertisers, from government regulation. They have sought judicial candidates who would interpret the Constitution and other federal statutes in a way that would promote this agenda. And their nominees have been appointed to the bench.

To a degree that has been insufficiently appreciated, and is in some ways barely believable, the contemporary federal courts are fundamentally different from the federal courts of just two decades ago. What was then in the center is now on the left; what was then in the far right is now in the center; what was then on the left no longer exists. Conservative thought itself has changed no less radically. In the 1960s and 1970s, principled conservatives were committed to a restrained and cautious federal judiciary. Their main targets included Roe v. Wade and Miranda v. Arizona, which they saw as unsupportable judicial interference with political decisions. They wanted courts to back off. But the goal has increasingly been to promote "movement judges"--judges with no interest in judicial restraint and with real eagerness to strike down the acts of Congress and state governments. On the central issues of the day, many conservative judges seem to think that the Constitution should be interpreted to overlap with the latest Republican Party platform. (Sometimes they call this "strict construction.")

In transforming the federal judiciary, Presidents Ronald Reagan and George Bush Senior were critical figures, seeking to populate the bench with young judges committed to the preferred view of the Constitution. Many of their appointees remain active--and will so remain for many years. But the effort to reshape the federal judiciary has not been limited to Republican presidents. Republican senators have been equally single-minded. Showing extraordinarily little respect for presidential prerogatives, right-wing senators did whatever they could to block President Clinton's judicial nominees. Sometimes the obstructionists justified their actions by labeling Clinton nominees, whatever the facts, as "liberal activists." Sometimes they offered no reasons at all and simply refused to schedule confirmation hearings. One result was that many moderate Clinton nominees received no serious consideration from the Republican-led Senate Committee on the Judiciary.

In contrast with their single-minded Republican counterparts, Democrats in the White House and the Senate have been astonishingly passive. To high-level Democrats, the composition of the federal judiciary has rarely been a major priority. Clinton chose two centrist justices, Ruth Bader Ginsburg and Stephen Breyer, whose views are far more cautious and moderate than those of such liberals as William Brennan and Thurgood Marshall. Ginsburg and Breyer are exceptionally distinguished choices (and, in my own view, their caution and moderation are entirely appropriate). But they cannot be counted as the Democratic counterparts to Justices Antonin Scalia and Clarence Thomas. And with a few prominent exceptions, including the nominations of Robert Bork and Thomas, Democratic senators have usually deferred to Republican presidents. Under Reagan and Bush Senior, immoderate "movement" judges have been confirmed to the lower courts without the slightest protest.

JUDICIAL ROBES, POLITICAL SWORDS

The result of this one-sided political battle is that America now has an ideologically reconstructed federal judiciary that has taken a strong stand, in many cases, against both Congress and the states. …

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