By 2004, every federal appeals court in the country could be controlled by Republican-appointed judges, according to a report by People for the American Way (PFAW). Because federal judges are appointed for life, this could transform the U.S. legal system. Already, seven of the nine Supreme Court justices are Republican-appointed and at least two retirements are expected within the next few years. President Bush has said he would appoint judges in the mold of Antonin Scalia and Clarence Thomas, the Supreme Court's most conservative justices.
An array of groups, including PFAW, NARAL Pro-Choice America, and the Sierra Club, have organized to oppose extreme right-wing nominations to the federal courts. The groups are lobbying Congress, mobilizing the grassroots, and educating the public about the dangers of a right-wing-controlled judiciary.
Democrats in the Senate have filibustered to block two controversial Bush appeals court nominees, Priscilla Owen and Miguel Estrada, and the Senate Judiciary Committee rejected Charles Pickering's nomination to the Fifth Circuit Court of Appeals. The nomination of L.A. Superior Court Judge Carolyn Kuhl to the Ninth Circuit has been opposed by both of California's senators, who have called on the Senate and the Bush administration to respect the long-standing tradition of respecting the positions of home-state senators. Senator Dianne Feinstein voted against Kuhl's nomination after she received 30,000 e-mails calling Kuhl unfit for the federal court. Kuhl favors overturning Roe v. Wade, the case that guaranteed a woman's right to abortion, and defended Bob Jones University, a school that lost federal tax exemptions for forbidding interracial dating.
Elliott Mincberg, vice president of PFAW, hailed a number of recent Supreme Court decisions that upheld civil rights, but warned that all of them depended on narrow majorities that would vanish with the replacement of just one justice. The appointment of one justice who agreed with Scalia and Thomas could lead to the overturn of more than 100 cases, turning back the clock on voting rights, gay rights, affirmative action, reproductive choice, environmental protection, and the right of the poor to lawyers, as well as determine the fate of those detained without trial or access to lawyers as part of the war on terrorism.
But opposition to the most extreme appointees could transform the situation, Mincberg says. The Supreme Court's recent gay rights decision, which carved out a broad new right to privacy and could have wide effects on reproductive rights, gay marriage, and gays in the military, was written by Justice Anthony Kennedy, a moderate who was appointed by Ronald Reagan after the appointment of arch-conservative Robert Bork was blocked by Senate Democrats backed by grassroots opposition to Bork's confirmation.
Republican leadership has recently threatened to change the Senate rules that allow a minority to block a nomination by filibuster, calling this tactic obstructionist. Yet the speed of confirmation of Bush's nominees has been record-breaking. During the first year of Bush's term, when the Democrats controlled the Senate, the Senate confirmed 100 nominees, whereas on average only 39 of President Clinton's nominees were confirmed per year, according to PFAW's report. Record numbers of federal court positions were vacant when Bush took office.