Judicial Chainsaw Massacre

• Originally published by In These Times December 13, 2004

Copyright 2004 Institute for Public Affairs  

By Stephen J. Fortunato, Jr.
By Stephen J. Fortunato, Jr. is an associate justice with the Rhode Island Superior Court.


PLAGIARIZING FROM HIS DEFEATED RIVAL, ON November 3 George W. Bush promised the nation "a season of hope." For those who view the U.S. Supreme Court and the federal judiciary as protectors of minorities from unlawful discrimination and as guarantors of civil liberties and constitutional rights, the reality that lies ahead is more aptly described by Rimbaud: "a season in hell."

Bush is poised, chainsaw in hand, to redefine the meaning of justice and fairness through the nominations he will be making to the federal bench. With Chief Justice William Rehnquist ailing, his first appointment is probably not far away, and Justice Antonin Scalia is the likely replacement. Bush repeatedly has praised Scalia and Justice Clarence Thomas for embodying the judicial philosophy he admires. The short translation of these endorsements is that Bush wants judges who will not locate in the Constitution any rights not expressly enumerated, despite the Ninth Amendment's declaration that the lack of an exhaustive list "shall not be construed to deny or disparage [other rights] retained by the people."

Given the age and health of the Supreme Court members, Bush will likely appoint three or four justices during his second term. But because the Supreme Court considers only 90 or so cases a year that go to full decision, he will do his greatest damage in the lower courts. The federal judiciary of about 800 judges turns over 20 to 25 percent every four years. Bush already has appointed 22 percent of all sitting federal judges, and by the end of his second term, close to 50 percent of all federal judges could thank him for their positions.

Bush screens his appointments primarily for their right-wing ideology in matters of civil rights, civil liberties and criminal law. A study published in July by law professors Robert Carp, Kenneth Manning and Ronald Stidham in the respected legal professional journal Judicature evaluates the decisions of Bush appointees and compares them to those made by other federal judges dating back to the Johnson administration. Not surprisingly, the George W. Bush judges were rivaled only by those of Ronald Reagan, siding 65 percent of the time with the government against claims by individuals seeking to vindicate or expand constitutional rights. This was as true for Bush's female and minority appointees as it was for his white ones.

Bush's ideological litmus test compounds a longstanding problem with federal judicial nominations: a lack of relevant experience. For instance, in the domain of criminal law, according to annual studies published by The Harvard Law Review, 20 percent to 25 percent of the Supreme Court's full opinions address criminal matters in each term, yet no present member of the High Court ever defended a person accused of a felony during their pre-judicial careers. On the other hand, while only 5 or 6 percent of the Court's opinions involved appeals of administrative decisions, four of the Court's members -- Rehnquist, Scalia, Thomas and Breyer have backgrounds in the area of government regulation. Overall, the federal bench is no different, with 40 percent of the judges drawn from the ranks of prosecutors and many others from corporate law firms.

Many groups are in jeopardy, but perhaps those most in peril are young African-American males. It is not hard to make the argument that the U.S. criminal justice system is systemically racist, given African-Americans account for nearly 45 percent of more than 2 million in jail or prison, while comprising only 12 percent of the general population. Six of 10 juveniles presently confined are minority youth. This state of events is decimating communities of color, and Bush's appointments, driven by right-wing ideology and lacking any experience working on behalf of people from poor communities, will only exacerbate this problem.

The most that progressives can hope for is that a stealth moderate will slip through the vetting process. Some shrewd candidates have been positioning themselves already. Take Professor Cass Sunstein of the University of Chicago Law School, a prolific author often described as a moderate, or even a "liberal." Writing in the fall issue of Dissent, he pandered to the Bush administration: "By historical standards, the Bush administration has acted with considerable restraint and with commendable respect for political liberty. It has not attempted to restrict speech or the democratic process in any way." As I said: a season in hell.