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With a federal judicary already in crisis, a Mitt Romney presidency could spell the end of the federal judiciary as we know it.

Written by Jessica Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.


As it stands the state of the federal judiciary is one of crisis. More than 160 million Americans live in a community with a federal court vacancy. Additional funding cuts threaten to shut down courts or suspend trials in some areas which means individual seeking justice for claims must wait longer, if they have access to the courts at all. Judicial vacancies not only stress the functioning of the federal judiciary, they threaten the ideological stability as well. A significant reason the federal judiciary is chronically understaffed is because Congressional Republicans refuse to act on nominees out of partisan and ideological spite. The result is a federal bench significantly lacking in any diversityrendering judgments over an increasingly diverse population. Sounds bad, doesn't it? It is, and if Mitt Romney wins the presidency, it will only get worse.

Early in his tenure as governor of Massachusetts, Romney developed a reputation as a man with an eye toward good governance and transparency. His early judicial appointments reflected a wide array of ideologies and experiences and Romney even undertook more substantive structural reforms to combat the practice and perception of political cronyism in judicial nominations.

But it quickly became clear that in order to advance his political career Romney would have to embrace a harder-line conservatism in both ideology and approach to the courts. Chronicles of Romney's political evolution from moderate to hard-right plutocrat are not difficult to come by, but it is his approach to the courts, their independence and their function that deserves much closer scrutiny. And that scrutiny shouldn't be limited to simply the kind of judges a President Romney would appoint to the federal bench, but how his administration would help or hinder the function of the courts in its entirety.

If Romney's early judicial selections as governor of Massachusetts illustrate a belief in the necessity of an independent and ideologically diverse judicial system, his later selections show an embrace of rigid conservatism and the benefits of political payback. In Massachusetts Romney went from nominating openly gay judges to beneficiaries of Bain capital and from embracing oversight of the judicial nomination process to openly working against it.

Fast forward to Romney's current presidential run. Under any other political climate than the current one, having failed Supreme Court nominee Robert Bork as a judicial advisor would be considered a political liability at best and the end of any serious presidential wish at worst. After all, Bork's political and legal career first drew attention back in 1973 when as solicitor general and under direct order from then-President Nixon, he fired Archibald Cox as special prosecutor in the Watergate cover-up. Bork's views on civil rights, including the idea that because women make up a majority of the population gender discrimination is an impossibility, and his belief that integrating public accommodations under the 1964 Civil Rights Act was an "unsurpassed ugliness," would eventually go on to shape a belief that the judiciary must bend its will to that of the people unless expressly prohibited by the Constitution.

If that sounds a bit obtuse let's ground it in the current debate on women's reproductive rights. At least one sitting U.S. Senator is calling on conservatives to simply ignore the mandates of Roe v. Wade and establish fetal personhood via the 14th Amendment. That call to ignoring the rule of law because it is an affront to the will of the "people" is directly out of the Robert Bork playbook.

Combine Bork's ultraconservative orthodoxy when it comes to the federal courts, his shared religious conservatism with Romney and add Romney's deep ties to the private equity world and we could expect most judicial nominations would fit the mold of Samuel Alito – social conservatives with deep and loyal ties to the monied world.

Declaring that a President Romney would appoint staunch conservative judges and practitioners to the federal bench is admittedly not much of a declaration. Place those ultra-conservative justices in a system already structurally strained and stressed from a decade of political attacks and suddenly the federal courts start to look an awful lot like those businesses Romney the private equity baron would take over and kill off.

The obvious problem with that scenario is that we're talking about the federal courts and not a private company on the verge of bankruptcy and prime for a hostile take-over.

Romney may have started his political career in Massachusetts as an advocate of judicial reform, but he did not end it as one. And with the state of our federal judiciary already in crisis the last thing this country can afford is an administration that drives the law further right while dismantling the courts from within.

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Comment Preferences

  •  Citizens United shows us takeover has already (3+ / 0-)
    Recommended by:
    blueoldlady, dewtx, hotheadCA


    Republicans take care of big money, for big money takes care of them ~ Will Rogers

    by Lefty Coaster on Mon Jun 04, 2012 at 11:21:06 AM PDT

  •  Takeover What? Federal Judiciary is 90% Conservatv (1+ / 0-)
    Recommended by:

    appointments now, according to Mike Papantonio on prog radio a few weeks ago. I don't know if he meant that number to decimal place accuracy but the judiciary has already been taken over. The only question is how much more radical it will get.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Mon Jun 04, 2012 at 11:23:00 AM PDT

    •  Bush/Cheney finished (1+ / 0-)
      Recommended by:

      what Reagan & Bush I started.

      Clinton was able to make a little progress, but Bush II did a masterful job of appointing as many federal judges as possible as well as replacing most of the U.S. Attorneys with conservatives.  IIRC, they replaced most of the USA's with their own crews within the first year or two in office.

      I had really hoped Obama would have replaced those conservative USA's with moderate or liberal attorneys, but no such luck.  He'll probably regret it.

      "We must not confuse dissent with disloyalty." Edward R. Murrow

      by Betty Pinson on Mon Jun 04, 2012 at 11:43:59 AM PDT

      [ Parent ]

      •  clinton I (0+ / 0-)

        made no progress at all. See Stephen Reinhardt of the Ninth Circuit's blasting of Clinton I's appointments to that circuit; here, we find his blunt assessment that "there are no liberals being placed on the courts by Bill Clinton." Obama's record on judicial appointments is superior to Clinton I's in every way.

      •  some (1+ / 0-)
        Recommended by:

        more recollections of the wonderment of Clinton I, in re judicial appointments:

        "Bill Clinton seems to consider the courts unimportant," says Reinhardt. "To him, judicial nominations are things to be traded for political advantage. They're of no significance to him. I don't think he's biased against liberals. He just thinks they will cause him political trouble, so he won't appoint any."
        "Clinton's picks are far more conservative than Jimmy Carter's," says Ronald Stidham, an Appalachian State University political-science professor who has analyzed the ideological underpinnings of almost 28,000 federal court decisions made since 1968.

        "Clinton's appointees are about as liberal as Gerald Ford's," adds Stidham. "In fact, the Clinton judges aren't all that much more liberal than Nixon's."

        So fawning has the President been in courting Republican approval that, as of mid-1996, 182 of 187 Clinton judicial nominees that had come to a Senate vote were approved without any Republican opposition.
        "When it comes to court appointments, it's like everything else with Clinton—he has no principles whatsoever," says Hentoff. "I see no reason—from the Supreme Court appointments on down to the district-court appointments—to vote for this guy. If he thought it would make him more popular, he'd appoint Caligula."
  •  and didn't the President leave Bushies as DAs? (3+ / 0-)
    Recommended by:
    blueoldlady, phonegery, hotheadCA

    We need to clean that up too.

    •  Yes (1+ / 0-)
      Recommended by:

      Not sure why.  IMO, Obama has been too trusting of Republicans.  Until he had to run for re-election, I think he really thought most GOP'ers were nice folks, people he could work with.  Naive.

      "We must not confuse dissent with disloyalty." Edward R. Murrow

      by Betty Pinson on Mon Jun 04, 2012 at 11:45:17 AM PDT

      [ Parent ]

      •  AFAIK (1+ / 0-)
        Recommended by:

        His Justice Dept is also riddled with Bush appointees, but given what happens when someone becomes a civil servant, maybe he can't help that.

        Yet--didn't Bush/Cheney basically run through the DOJ, the FBI and the CIA and tell everybody who didn't agree with them to "clean out their desks?" How come they can do it and Obama can't?

        I am woefully underinformed here.

        Being ignored is the difference between being a one percenter and an American.--sweeper

        by SouthernLiberalinMD on Mon Jun 04, 2012 at 12:48:22 PM PDT

        [ Parent ]

  •  It can still get worse. (2+ / 0-)
    Recommended by:
    blueoldlady, phonegery

    There is a huge locked in conservative base in the judiciary, as a result of dedicated GOP efforts since Reagan to appoint ideologues and block Dem appointments to the bench.

    A news headline this morning about Siegelman in Alabama served as a reminder that it was only a few short years ago that the appointment of the US Attorneys by Karl Rove's political office represented a real effort to make turn the justice apparatus into a political enforcement arm.

  •  yeah, this is pretty much the reason (0+ / 0-)

    to vote for Obama.

    the only one I've yet come up with.

    Being ignored is the difference between being a one percenter and an American.--sweeper

    by SouthernLiberalinMD on Mon Jun 04, 2012 at 12:45:54 PM PDT

    •  well aren't you privileged! (0+ / 0-)

      Must be good to have no other reasons. Some of us have friends with pre-existing conditions that finally got health insurance and friends that have had mortgage reductions and I have 2 great-uncles that finally got their settlements from the Pigford case...but whatever!

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