RIGHT WING JUSTICE

A measured denunciation of what the author deems an ongoing conservative effort to pack the American judiciary with hard-right judges.

Schwartz (Law/American Univ.; ed., The Rehnquist Court, 2002) is plainly displeased by a system that makes William Rehnquist appear to be a judicial moderate, but he is seldom moved to outrage. Instead, he patiently constructs historical and judicial trends, showing that the advances in progressive legislation and interpretation thereof in the New Deal era have been steadily turned back in subsequent years. Schwartz outlines three great transformations in American society in the 20th century, the first two of which came from the New Deal and its liberal successors to institute “a change in the relationship between the federal government and the American people, which established a major role for the government in American economic life.” Much of the conservative backlash has been posed in economic terms: Why, Rehnquist himself once asked, should the government have any right to dictate to whom a business owner can serve a meal? (“It is about time the Court faced the fact,” a young Rehnquist would write, “that the white people in the South don’t like the colored people.”) Whereas Rehnquist often sat alone in upholding, say, school segregation and the rights of employers over employees, he has been joined by countless like-minded peers, thanks to the efforts of Bush administrations I and II to pack the courts: by the time he left office in 1992, Bush I had seen to it that “Republican judges comprised 80 percent of all federal judges and 75 percent of the appellate bench,” leaving little for Bush II to do save to plumb the depths of reaction by nominating to the federal circuit one judge whose consistency in voting to the right surprised even Sen. Orrin Hatch, and another who told Congress that clean air and water regulations were unconstitutional.

Read and weep—especially because there are few vacancies for a moderate administration to fill, so that for the foreseeable future, “the judiciary will be permanently titled toward the extreme right.”