January 2012, Week 2


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Tue, 10 Jan 2012 21:55:03 -0500
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The Conservative Takeover Will Be Complete

By Dahlia Lithwick
January/ February 2012


For anyone considering the 2012 election's importance to the
future of the American judiciary, one fact stands out: next
November, Ruth Bader Ginsburg will be seventy- nine years
old. If a Republican wins the presidential election, he or
she may have an opportunity to seat Ginsburg's successor,
replacing the Supreme Court's most reliably liberal jurist
with a conservative. That would mean that the Court-currently
balanced almost elegantly between four liberals, four
conservatives, and the moderate conservative Anthony Kennedy-
would finally tilt decisively to the right, thereby
fulfilling Edwin Meese's dream, laid out in his famous 1985
speech before the American Bar Association, of reshaping the
Court around one coherent "jurisprudence of original
intention." Meese, who was then Ronald Reagan's attorney
general, wanted nine conservative constitutional originalists
on the Court. He may soon get his wish. A 2008 study by
Richard Posner, a federal appeals court judge, and William
Landes, a law professor at the University of Chicago,
examined the voting records of seventy years of Supreme Court
justices in order to rank the forty-three justices who have
served on the Court since 1937. They concluded that four of
the five most conservative justices to serve on the Supreme
Court since 1937 sit on the Supreme Court today. Justice
Clarence Thomas ranked first.

Kennedy, who is ranked tenth in that study, will be seventy-
six next November. If a Republican successor of Obama gets to
replace both Kennedy and Ginsburg, it's fair to predict that
the Roberts Court may include five or even six of the most
conservative jurists since the FDR era. Following the
ideological disappointment that was David Souter, Republicans
have been spectacularly successful in selecting and
confirming justices who consistently vote for conservative
outcomes. Indeed, the replacement of moderate Sandra Day
O'Connor with Samuel Alito may have produced the most
consequential shift at the Court in our lifetimes; in a few
short years O'Connor's pragmatic legal doctrine in areas
ranging from abortion to affirmative action to campaign
finance reform has been displaced by rulings that would make
Edwin Meese's heart sing.

But it's not just the Supreme Court that would tilt further
right. The high court only hears seventy-some cases each
year. The vast majority of disputes are resolved by the
federal appellate courts, which are the last stop for almost
every federal litigant in the country. And the one legacy of
which George W. Bush can be most proud is his fundamental
transformation of the lower federal judiciary-a change that
happened almost completely undetected by the left. At a
Federalist Society meeting in 2008, Bush boasted that he had
seated more than a third of the federal judges expected to be
serving when he left office, most of them younger and more
conservative than their colleagues, all tenured for life and
in control of the majority of the federal circuit courts of
appeals. The consequences of that change at the appeals court
level were as profound as they were unnoticed. As Charlie
Savage of the New York Times put it at the time, the Bush
judges "have been more likely than their colleagues to favor
corporations over regulators and people alleging
discrimination, and to favor government over people who claim
rights violations. They have also been more likely to throw
out cases on technical grounds, like rejecting plaintiffs'
standing to sue." In short, they have copied and amplified
the larger trends at the Roberts Court: a jurisprudence that
skews pro-business, pro-life, anti- environment, and toward
entangling the church with the state. Under the rhetorical
banners of "modesty" and "humility" and "strict
construction," the rightward shift has done more to restore a
pre-New Deal legal landscape than any legislative or policy
change might have done.

The current administration has not done much to restore the
ideological balance of the federal appeals courts. For one
thing, this was never Obama's priority the way it was for
Bush, his father, and Ronald Reagan. Obama, like Bill Clinton
before him, has selected lower court judges more notable for
their racial and gender diversity than their hard-left
judicial orientation. And he also has failed to seat them in
numbers comparable to the Bush record. Republicans have used
Senate rules so effectively to block Obama judges that the
judicial vacancy rate currently stands at eighty-four
vacancies, with thirty of those designated "judicial
emergencies" based on courts' inability to manage caseloads.
Filibusters, holds, and other arcane Senate rules have
brought the system to the point where civil litigants may
wait years to get into court. And the unprecedented waste of
time that results from GOP obstruction of Obama judges has
led some of the most interesting and thoughtful jurists, most
famously California's Goodwin Liu, to withdraw their names
from contention. Why have the Republicans been so much more
effective at dragging the judicial branch rightward than
Democrats have been in yanking it back? Focus, mainly. Since
the Meese revolution of the mid-1980s, the GOP has been
better at constitutional messaging, better at mobilizing the
electorate, and better at laying out a judicial vision than
liberals, who still seem to believe that unless the Supreme
Court overturns Roe v. Wade (or perhaps the Affordable Care
Act), judges are not really a voting issue.

Perhaps the best evidence of the resulting "intensity gap"
over the work and composition of the federal courts lies not
in the lopsided makeup of the bench but in the proposals to
"reform" the judicial branch that have been put forward in
recent months by GOP presidential hopefuls. Just for
starters: Rick Perry seeks to term- limit federal judges, and
before he left the race Herman Cain talked about
"overturning" the Supreme Court (whatever that means) if it
ever legalizes same-sex marriage. Michele Bachmann believes
Congress can and should keep the federal courts from ruling
on same-sex marriage. Rick Santorum says he wants to just do
away with the entire U.S. Ninth Circuit Court of Appeals. And
Newt Gingrich says his plans for the federal judiciary
include empowering members of Congress to summon Supreme
Court justices to defend their opinions. He also wants
Congress to pass a "personhood law" that would define life as
beginning at conception under the Fourteenth Amendment, and
thus, as he said, "undo all of Roe vs. Wade, for the entire
country, in one legislative action." Ron Paul joins Bachmann,
Gingrich, and Perry in promising to strip judges of authority
to hear any cases involving religion, privacy, the right to
marry, and other matters.

Even if you consider all of these threats, promises, and
pledges about the courts to be more performance art than
actual policy (and I do-Republicans have been running against
the ghost of the Warren Court since the 1970s), it says
something about the primacy of curbing runaway courts in GOP
rhetoric. As Chief Justice John Marshall famously said in
1803, "It is emphatically the province and duty of the
judicial department to say what the law is." But Republicans
are running on the premise that the courts may only say what
the law is if the law means what Gingrich believes.

Imagine a Democratic presidential nominee running on promises
to reshape, remake, make over, hog-tie, or even just refinish
the federal bench. It doesn't happen. And so, even though the
most conservative Supreme Court in decades sits poised to
decide cases ranging from the constitutionality of President
Obama's health care legislation to the future of affirmative
action in schools, the rights to gay marriage, and the fate
of the voting rights act, Republicans portray both the
Supreme Court and the lower courts as a collective of lefty
hippies. And Democrats mainly just look at their fingernails.
If you care about the future of abortion rights, stem cell
research, worker protections, the death penalty,
environmental regulation, torture, presidential power,
warrantless surveillance, or any number of other issues, it's
worth recalling that the last stop on the answer to each of
those matters will probably be before someone in a black
robe. Republicans have understood that for decades now, and
that's why the federal bench-including the Supreme Court-is
almost unrecognizable to Democrats today.


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