Restore Fairness to the Judiciary
By Michael S. Greco and Patricia M. Wald
October 30, 2008
The Bush administration has appointed too many judges with partisan political loyalties who have failed to adequately protect citizens' freedoms. The Supreme Court now has four unabashed conservative justices and a fifth who frequently creates a rightist majority. The next president is likely to appoint three new justices. These appointments will either cement a far-right majority for decades to come or return the Supreme Court to the balanced and independent composition intended by the Constitution.
Equally important, the next president will appoint hundreds of life-tenured judges to the lower federal courts. More than 99.9 percent of the 360,000 federal cases decided each year are resolved in these appellate and trial courts, never reaching the Supreme Court. More than 58 percent of current federal judges were appointed by Republican presidents, over one-third by Bush alone. Ten of the 13 federal appellate courts now have wide majorities of conservative Republican appointees. Balance on the federal courts no longer exists.
Such political imbalance in the judiciary has grave consequences. A recent study of over 20,000 decisions documents that federal court panels consisting solely of Republican appointees consistently struck down government agency decisions that did not adhere to conservative ideology. Thus, when the Environmental Protection Agency issues a regulation requiring cleaner air, or the National Labor Relations Board resolves a dispute in favor of employees, a judicial panel consisting of Republican appointees is more likely to strike it down than a balanced panel of Democratic and Republican appointees.
Decisions by Bush appointees repeatedly have denied Americans freedoms and equal access to justice. In Ledbetter v. Goodyear Tire & Rubber, Bush-appointed Justice Samuel Alito, writing for a 5-to-4 Supreme Court majority, denied workers the right to equal pay for equal work. The court ruled that a woman paid less than a man for doing the same job had only 180 days after her first discriminatory paycheck to file her claim - even if she did not learn until years later that men doing the same work earned more. Republican presidential candidate John McCain has praised the Ledbetter decision as "correct."
The Bush presidency has produced a right-wing judicial imbalance, one that a McCain administration would exacerbate. For decades, McCain has supported Republican presidents' appointment of arch-conservatives to the courts. He voted to confirm every Bush nominee, and has said he will select conservative judges and would not have selected Justices Ruth Bader Ginsburg, Stephen G. Breyer, David H. Souter, or John Paul Stevens (the latter two Republican-appointed), judges widely respected for placing the law ahead of politics. McCain has appointed a committee to advise him on judicial appointments that includes the same people who advised Bush. These people understand the profound impact presidential judicial appointments have.
Democratic presidential hopeful Barack Obama has a different view of the role of judges from that of Bush and McCain. Obama, a Constitutional scholar, would likely appoint judges who respect the Constitution as he does - particularly its core values of liberty and equality. Unlike Bush - who dangerously has used "presidential signing statements" to decline to enforce new laws he does not like, thereby unconstitutionally usurping power from both Congress and courts - Obama would ensure that courts safeguard the freedom of all citizens, independent from political influence of the executive branch and Congress.
On Election Day, voters must consider the hundreds of federal judges that the new president will appoint. For good or ill, those judges will be on the bench long after the next president has left office. The quality of life for future generations, as well as the nation's longstanding commitment to justice and equality, will depend on whether those judges are impartial and fair.
Michael S. Greco is past president of the American Bar Association and a Boston lawyer. Patricia M. Wald is former chief judge of the United States Court of Appeals for the District of Columbia Circuit.
Copyright 2008 Globe Newspaper Company.
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