- 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.