President George W. Bush will leave office next month, but he’ll leave behind what may turn out to be his most enduring legacy: a federal court system that has been pushed sharply to the right.
The New York Times reported recently that Republican-appointed judges now make up 62 percent of the appeals court bench. They now control 10 of the 13 federal court circuits. Judges appointed by Democrats have a majority on just one circuit.
Many of Bush’s appointees take a dim view of church-state separation and seem willing to rubber stamp the agenda of the Religious Right.
Some of these appointees include:
• William Pryor, 11th U.S. Circuit Court of Appeals. A former Alabama attorney general, Pryor went to court to defend notorious Alabama Chief Justice Roy Moore’s 2.5-ton Ten Commandments monument in the state judicial building, telling a rally that God had chosen Christians “to save our country and save our courts.”
• Janice Rogers Brown, U.S. Court of Appeals for the District of Columbia. Brown says the United States is in a religious battle of Civil War proportions, has questioned whether the Bill of Rights applies to the states and has criticized the Supreme Court for relying on that “rather uninformative metaphor of the ‘wall of separation of church and state.’”
• Michael W. McConnell, 10th U.S. Circuit Court of Appeals. Described in The New York Times after his nomination as “an important architect of a shift in American law away from strict separation of church and state,” McConnell has expressed support for tax aid to religion, bitterly opposed reproductive rights and called for more religious influence in public schools and public life.
“On Oct. 6,” The Times noted, “Mr. Bush pointed with pride to his record at a conference sponsored by the Cincinnati chapter of the Federalist Society, the elite network for the conservative legal movement. He noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and that represents one of his most enduring accomplishments. While a two-term president typically leaves his stamp on the appeals courts – Bill Clinton appointed 65 judges, Mr. Bush 61 – Mr. Bush’s judges were among the youngest ever nominated and are poised to have an unusually strong impact.”
Critics say the Bush appointees are having an effect. Pryor wrote the majority opinion in a recent decision upholding a Georgia county’s policy of opening its meetings with sectarian prayer, while McConnell has ruled in favor of public funding for pervasively sectarian colleges. He has also been involved in a case now before the Supreme Court that may allow a local government to prefer one religious symbol over others – displaying a Ten Commandments monument favored by the community majority but rejecting the code of a minority faith.
Other social issues have been affected as well. In June, as The Times notes, the 8th Circuit voted 7-4 to uphold a South Dakota law requiring doctors to tell women that abortions “terminate the life of a whole, separate, unique living human being.” Bush had appointed six of the seven judges that made the ruling.
Legal analysts say the appointment of lower court judges is very important. Most cases never reach the U.S. Supreme Court, leaving appeals court judges to deal with the vast majority of legal tussles.
Prior to the election, the Brookings Institution released a study of potential vacancies in the federal judiciary. It noted that a victory by U.S. Sen. John McCain could have cemented conservative control over the courts for a generation. On the campaign trail, McCain frequently talked about the need for “strict constructionist” judges, a code term for those who hew strongly to the right.
President-Elect Barack Obama, by contrast, vowed to appoint judges with “empathy” for the disadvantaged.
Obama may have a chance to push the judiciary in a more moderate direction. Brookings says by 2013, the Republican majority on the courts may be significantly eroded.