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Judges are in play. Deals are afoot. On April 15, the White House traded away the nomination of Stephen Murphy for the U.S. Court of Appeals for the 6th Circuit for the confirmation instead of one Helene White. For those with short memories, White had once been nominated by President Bill Clinton for the 6th Circuit but, after hanging fire for four years, was blocked by the then-Republican Senate. This upset Sen. Carl Levin (D-Mich.), who, fortunately, has a long memory. And so the swap. Murphy ended up with the U.S. District Court for the Eastern District of Michigan. For the 5th Circuit, Catharina Haynes snuck through on April 10. It is not clear yet for what, though � who knows? � a new interstate is always a possibility. Rumors also abound that the White House is about to name names for the last two vacant seats on the 9th Circuit � possibly elevating two district judges appointed to the lower court by President George W. Bush. They should go nowhere, barring the kind of deal that occurred in the Senate for the 6th Circuit. That’s because at the end of the Clinton administration, Clinton’s two appointments to the 9th Circuit, Barry Goode and James Duffy, were stopped by Republicans, even though unopposed by business or other special interests. It’s too late now for Goode and Duffy. But what should have been their seats should be held vacant for the next administration on what is now a right-of-center court (media reports to the contrary notwithstanding). This assumes the memories of California’s Democratic senators, Dianne Feinstein and Barbara Boxer, are the equal of Sen. Levin’s. PLAYING POLITICS Is this any way to maintain an independent judiciary? Actually, yes. Anyone who believes our judicial system is free from politics or ideology must live on another planet. From Marbury v. Madison (1803) to Bush v. Gore (2000), the third branch has always hosted a mix of old-boy politics, patronage, policy, and payback. Such considerations have been foremost for the past seven years. That’s why it’s now time to turn the key and kill the motor on Bush’s judge-making machine. Sen. Arlen Specter (R-Pa.) has threatened that if the Democrats do that, the GOP will “shut down the Senate.” Let them. They can then explain to the American people why rising unemployment, continuing home foreclosures, and a $3 trillion war are not worthy of attention. In truth, Bush already has reshaped the American judiciary in his image � not just the Supreme Court, but hundreds of trial and appellate courts. Nearly two-thirds are now in the hands of Republican appointees because of an ideologically driven campaign. In contrast, Bill Clinton’s appointments came mostly from the middle of the judicial road � moderates from corporate law firms, former prosecutors, and well-respected academics. Efforts from groups such as People for the American Way to urge more-progressive nominees fell on deaf White House ears. Those who did sneak through frequently were blocked by a Republican Senate. The president and the first lady rarely went to the mat over judges, deterred by the clout of Wall Street, the religious right, and other conservative interests. Should there now be a second Clinton or an Obama administration, concerted pressure will be required to even begin to overcome eight years of adding conservative jurists. Consider this. During the first year of the Bush presidency, the Democrats confirmed 59 appointments, twice the number confirmed in Clinton’s first year. Overall, according to the liberal watchdog Alliance for Justice, some 86 percent of Bush judicial nominees have been confirmed. In addition, through a form of “judge bartering,” the Republicans even succeeded in getting Clinton to name some of their own, such as Judge Richard Tallman now on the 9th Circuit. Tallman was part of the price Clinton paid for his 9th Circuit nominee William Fletcher. SUCCESS STORY The Bush administration and its allies have made a politicized judiciary into an art form. Most Americans are aware of this, if at all, only with regard to the Supreme Court (though less than one-third can name a single justice). The greater Bush ideological footprint, however, may well be in the lower courts � particularly the circuits. In 2007, these courts decided 31,717 cases; the Supreme Court just 76. It is those circuits that typically make final decisions about what is in the water we drink, the food we eat, the air we breathe; about the rights of the accused, the right to privacy, and the rest of our most basic liberties. And it is those courts that have shifted to the right, that are now more likely to defer to executive power, favor big business, and protect the individual less. A major player behind this sea change in the judiciary is the Federalist Society. The society was established 25 years ago to replace a legal system that members saw as “dominated by a form of orthodox liberal ideology” with one that promotes “liberty, traditional values and the rule of law through a conservative and libertarian network that extends to all levels of the legal community.” They have succeeded beyond their wildest dreams. The society now has well-placed members in the White House, the Department of Justice, Congress, academia, and the courts, including the Supreme Court. Now there is nothing illegal or, heaven forbid, un-American about an organization coming together to support a particular philosophy. Being the “best-organized, best-funded and most effective legal network operating in this country,” as the Washington Monthly has dubbed the Federalist Society, is no crime. But Americans should be concerned about this striking influence over government by an ideological group dedicated to views not shared by much of the electorate. Imagine if the American Civil Liberties Union were to infiltrate all levels of an Obama administration. As a long-time civil rights lawyer, I can dream about that, but just imagine how Republicans would howl. CUT OFF THE FLOOD Concerns about the Federalist Society are not liberal paranoia. The conservative success in “taking back the courts” is incontrovertible. Nine circuits now have a majority of Republican appointments; one a “supermajority” of 80 percent. Only two have a slim Democratic majority. This is not to say that all Republican appointees will decide the same way in all cases. Just more often than not. This has real-world consequences, with circuits recently tossing out cases alleging sexual harassment, racially discriminatory life insurance rates, and gender discrimination in health benefits. At the same time, courts deny immigrants asylum despite death threats, sign off on government tapping of broadband transmissions, and permit “hill top” coal mining in Appalachia. It’s time for Senate Democrats to turn off this flood of GOP nominees, particularly in what could be the waning days of Republican control of the White House. If the Republicans hold the presidency, this conservative shift regrettably will continue. But if they don’t, it can be reversed, starting now. We’re about to have a watershed election on this country’s direction. The candidates will be evaluated partly on their vision for the judiciary. It makes little sense for Senate Democrats to approve the judicial soldiers of a political party that voters may soon reject decisively. So Senate Democrats should simply refuse to confirm any additional Bush nominees. And if that means the next president starts his or her term in office with a few more vacancies to fill, I for one won’t shed any tears. This is not just a game for keeping score. Every new federal judge is granted a lifetime appointment and enormous power to increase or decrease the sum total of social justice in this country. These appointments will have lasting impact on the general citizenry and just what kind of country we are � and that we will become. The Senate should be willing to wait to get the right nominees.
Al Meyerhoff, a civil rights attorney, is of counsel at Coughlin Stoia Geller Rudman & Robbins in Los Angeles. The views expressed are his own, not necessarily those of his firm.

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