With Republicans in control of the Senate, President Bush will try to fill
the federal courts with judges from the far right. He has long made it clear that
he wants to appoint conservative judges in the mold of Supreme Court Justices
Antonin Scalia and Clarence Thomas.
For the last two years, the Democrats have blocked the president's most conservative
nominees in the Senate Judiciary Committee. Now that the Republicans have captured
the Senate, the Democrats no longer control the committee. They have only one
way to check the president's ability to pack the federal courts and they must
use it: the filibuster.
There is ample precedent for filibusters of presidential nominations to executive
and judicial positions. In fact, Republicans frequently used them during Democratic
During the Clinton presidency, Republicans successfully filibustered and blocked
the nomination of Henry Foster for surgeon general.
In 1968, South Carolina's Sen. Strom Thurmond filibustered to stop the confirmation
of Justice Abe Fortas to replace Chief Justice Earl Warren and Judge Homer Thornberry
to succeed Fortas.
Democratic senators must use the filibuster now to block the most conservative
of President Bush's judicial nominees for the lower federal courts. Also, it is
likely that a justice or two may resign from the Supreme Court during the remainder
of the Bush presidency.
Democrats must use the filibuster, and the threat of the filibuster, to ensure
that a new justice is not a conservative from the same school as Scalia and Thomas.
An enormous amount is at stake in the judicial confirmation process. A change
in two votes on the Supreme Court could mean the overruling of Roe vs. Wade and
a woman's right to reproductive choice. In the years ahead, federal courts will
be deciding crucial questions concerning the federal government's power to provide
remedies for civil rights violations, including employment discrimination based
on race and gender.
Also, the federal courts are the essential and only check against excessive
government interference with individual rights in the name of the war against
Indeed, in every area of personal freedom, from freedom of speech to privacy,
American law and policy will depend on the composition of the courts.
Because the Supreme Court decides only about 75 cases a year, and hears fewer
than 2% of the cases in which review is requested, who sits on the federal Court
of Appeals is crucial.
During the Clinton presidency, one of us was informed by the White House counsel's
office that he was being considered for an appointment to the U.S. Court of Appeals.
Ultimately, he was told that he could not be appointed because it was thought
that his public support for affirmative action and reproductive freedom made him
too liberal to be confirmed by a Republican-controlled Senate.
If outspoken liberals were unacceptable judicial nominees during the Clinton
administration, then extreme conservatives are equally unsuitable now.
Courageous Democrats in the Senate must announce their intent to use the filibuster
to prevent a conservative takeover of the federal courts that could last long
beyond our lifetimes.
Erwin Chemerinsky and Catherine Fisk are visiting professors at Duke Law
Copyright 2002 Los Angeles Times