Judiciary- The Lagging Indicator

I remember certain posters laughing at me when I said the judiciary was the ultimate lagging indicator of political power...

http://www.latimes.com/news/nationworld/world/la-na-judges2jan02,0,1283487.story?coll=la-home-center

Conservative courts likely to be Bush legacy

The president's success in getting judicial nominees confirmed gives the federal bench a decided GOP tilt.
By David G. Savage, Los Angeles Times Staff Writer
January 2, 2008
WASHINGTON -- After nearly seven years in the White House, President Bush has named 294 judges to the federal courts, giving Republican appointees a solid majority of the seats, including a 60%-to-40% edge over Democrats on the influential U.S. appeals courts.

The rightward shift on the federal bench is likely to prove a lasting legacy of the Bush presidency, since many of these judges -- including his two Supreme Court appointees -- may serve for two more decades.

And despite the Republicans' loss of control of the Senate, 40 of Bush's judges won confirmation this year, more than in the previous three years when Republicans held the majority.

"The progress we have made this year . . . is sometimes lost amid the partisan sniping over a handful of controversial nominations," said Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary Committee, in a year-end statement.

This progress is not altogether welcomed by liberal activists, who have been frustrated in their efforts to block more of Bush's nominees.

"Some of the appeals courts will be quite far to the right for a generation to come. So why is the Senate rushing to confirm as many of these terrible nominees as possible?" asked Simon Heller, a lawyer for the Alliance for Justice, a liberal advocacy group.

He gives the Republicans more credit than the Democrats for adhering to the party line. "Republican senators have voted in lock step to confirm every judge that Bush has nominated. The Democrats have often broken ranks," he said.

Conservatives tend to agree on that point. They say the ideological makeup of the courts has grown into a major issue on the right, and it has brought Republicans together, whether they are social conservatives, economic conservatives or small-government libertarians.

"This issue unites the base," said Curt Levey, executive director of the Committee for Justice, a group that lobbies for Bush's judicial nominees. "It serves as a stand-in for the culture wars: religion, abortion, gay marriage and the coddling of criminals."

Nothing irritates conservatives more, he said, than having unelected judges decide politically charged issues that some believe should be left to voters and legislators. "Conservatives tend to blame judges for the left's success in the culture war," Levey said.

While Republicans find themselves somewhat divided heading into the election year, Bush is widely praised for his record of pressing for conservative judges.

"From Day One, President Bush made the judiciary a top priority, and he fought very hard for his nominees," said Washington attorney Bradford Berenson, who worked in the White House counsel's office in Bush's first term. "He was less willing to compromise than President Clinton. As a result, in raw numbers, he may end with somewhat fewer judges than Clinton had."

In his eight years in office, Clinton named 367 judges, according to the Federal Judicial Center. When he left office in 2001, Democratic appointees had a slight majority among trial judges and on the courts of appeal.

Among the 12 regional appeals courts, all but one are closely split or have a Republican majority. The 9th Circuit Court of Appeals -- which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington -- is viewed as the last bastion of liberalism, with 16 Democratic appointees and 11 Republicans. So far, Bush has named seven judges to the 9th Circuit, but he will not match Clinton's total of 14.

Does it make a difference whether a judge was appointed by Bush or Clinton?

Legal activists who closely follow the courts are convinced it does make a difference in a significant number of cases. "If you could pick only one thing, look at whether a case goes before a jury. The Bush judges vote to keep cases away from juries," said Judith E. Schaeffer, legal director for People for the American Way, a liberal advocacy group in Washington.

In job-discrimination suits, for example, the employee who is the plaintiff typically wants his or her case heard by the jury. The employer -- usually, a business or corporation -- wants the dispute decided or dismissed by a judge, she said.

Schaeffer said her organization has looked closely at such cases and found that Bush's judges have made it harder for plaintiffs to sue or to win damages if they prevail. "That is the mind-set. They are bent on denying justice to ordinary Americans," she said.

Berenson, the former Bush administration lawyer, said conservatives and liberal judges differ mostly on their willingness to strike down laws.

"Liberals tend to celebrate judicial power; conservatives tend to be suspicious of it," he said. "Boiled down to its essence, conservatives want the judiciary to play a smaller role in our society. They want more room for democratic self-government. That means a conservative judiciary will defer to the executive branch on matters like the war on terrorism. And they will be more inclined to defer to the legislature on issues like abortion."

He cited the example of the Partial-Birth Abortion Ban Act that Congress passed in 2003. In the past, the Supreme Court had struck down similar state bans, but last term, thanks to Bush appointee Justice Samuel A. Alito Jr., the federal law was upheld, 5-4.

In the year ahead, liberal activists will be playing defense. They hope to block as many Bush nominees as possible from winning confirmation to the lifetime seats on the appeals courts. And since the Supreme Court's two oldest justices -- John Paul Stevens, 87, and Ruth Bader Ginsburg, 74 -- are its strongest liberals, they are hoping a Democrat will win the White House in November.

In the party caucuses and primaries, the issue of judges hardly raises a ripple, but that will change in the months ahead, activists say.

"Once the Republicans and the Democrats have selected their candidates, they will start talking about the courts as a major rallying issue," said Jay Sekulow, counsel for the conservative American Center for Law and Justice. "Look at the Supreme Court today, and you can say the next president will decide its future for the rest of our lives."

http://www.realclearpolitics.com/articles/2008/07/court_may_represent_exiled_con.html

July 01, 2008
The Court vs. Voters
By E. J. Dionne

WASHINGTON -- If the long conservative era that began with Ronald Reagan's election is over, will the judges appointed during the right's ascendancy be able to block, frustrate and undermine the efforts of a new progressive majority?

Consider this analysis from two influential journalists describing Supreme Court justices as "the last hope of the conservative interests in the United States."

Imagine, they write, that a new liberal approach to the country's problems "had been overwhelmingly approved both in Congress and at the polling booths," so "conservative interests resorted to the courts, starting literally thousands of actions to stay the government's hand." Of the ensuing fight, they say: "The liberal justices themselves called their conservative colleagues arbitrary and madly unwise. But while the liberals warned, the conservatives laughed ... ."

Yes, we may go back to the future. Those words are from a still-compelling 1938 book called "The 168 Days" by legendary Washington journalists Joseph Alsop and Turner Catledge. They were writing about the conservative Supreme Court that struck down so much of Franklin D. Roosevelt's New Deal program and the effort by FDR to be given the power to name additional liberal justices to break the court's conservative majority.

Roosevelt's reach for expanded executive authority was unwise because he made it easy for his opponents to compare him to Hitler and Stalin. FDR lost the court-packing fight, but eventually got to name justices in the normal way, and conservative judicial dominance ebbed.

The spate of 5-4 conservative decisions during the Supreme Court term just ended should stand as a warning that we may soon revisit the fights of 70 years ago. Yet almost nobody is talking about this danger. To the extent that judges have been a campaign issue in recent elections, the focus has been on a few hot-button issues, notably abortion. After last week's sharply contested Second Amendment case, perhaps gun rights will join the list.

But the more important question is whether conservative judges will see fit to do exactly what conservative courts did for much of the New Deal era by using a narrow, 19th-century definition of property rights to void progressive economic, environmental and labor regulation.

Many judicial conservatives view the late-1930s period as a disaster because it marked the end of their power on the courts. After the court-packing battle, the Supreme Court began to defer to the democratically elected branches of government and their efforts to regulate the economy in the public interest. Property rights were well protected throughout this time, yet government was allowed to set rules on the uses of property that judicial conservatives of the pre-New Deal period viewed as suspect.

A new generation of conservatives wants to bring the old order back under the auspices of what's called the Constitution in Exile movement. Their driving idea is that the thrust of jurisprudence since the late 1930s voided the "real" Constitution.

As legal scholar Jeffrey Rosen noted in The New Republic, this movement favors "reimposing meaningful limits on federal power that could strike at the core of the regulatory state for the first time since the New Deal." He wrote that "justices could change the shape of laws governing the environment, workplace health and safety, anti-discrimination, and civil rights, making it difficult for the federal government to address problems for which the public demands a national response."

It's not hard to imagine the cases that conservatives would bring against laws passed by a Democratic Congress and signed by a President Barack Obama. Why wouldn't a movement that has tried to eviscerate wetlands laws and the Endangered Species Act challenge cap-and-trade legislation aimed at dealing with global warming?

If Congress ever passed a "card-check" law to make it easier for unions to organize, those who never much liked the minimum wage or collective bargaining would certainly try to overturn the new labor right in court.

And what would be the legal fate of new regulations on banking called forth by the economic devastation of the subprime mess, or bank bailouts that may be necessary to keep capitalism on track, or mandatory mortgage renegotiations to keep citizens from being thrown out of their homes?

The four conservatives on the Supreme Court, when empowered by the swing vote of Justice Anthony Kennedy, have already shown their willingness to overturn the will of Congress and local legislatures when doing so fits their political philosophy. The same majority could keep conservative ideas in the saddle long after the electorate has decided that they don't work anymore.