It’s tough to imagine a more flawed decision than Monday’s opinion by Judge Henry Hudson striking down a provision of the landmark Affordable Care Act. Indeed, in his unconstrained zeal to strike down health reform, Hudson mixed up two entirely different provisions of the Constitution—an error that even conservative commentators have criticized. Yet Hudson’s very presence on the bench is the product of a one-sided 30-year campaign to move the courts to the right.
Even the most heavy-handed novelist could not invent a character whose biography more clearly foreshadowed the kind of judge Hudson would be. A former antipornography crusader and conservative congressional candidate, Hudson has come under significant fire for his large investment in the right-wing campaign firm that includes Virginia Attorney General Ken Cuccinelli among its recent clients. Cuccinelli, of course, is the lawyer who filed the lawsuit challenging the act in Hudson’s court.
Hudson is hardly an isolated extremist. In fact, he was very much par for the course among President George W. Bush’s first slate of judicial nominees—a slate which included such luminaries as:
- Priscilla Owen, who took thousands of dollars worth of campaign contributions from Enron and then wrote a key opinion reducing Enron’s taxes by $15 million when she sat on the Texas Supreme Court
- Jeffrey Sutton, who spent much of his legal career inventing new ways to immunize states from civil rights laws
- Edith Clement, who now sits on the board of a notorious industry-funded organization that provides free junkets for federal judges
- Janice Rogers Brown, who once compared liberalism to “slavery” and Social Security to a “socialist revolution”
And, of course, who could forget corporate America’s favorite Supreme Court advocate—George W. Bush appointee John G. Roberts.
Senate conservatives have bent over backwards to prevent President Barack Obama from elevating newer, more moderate voices while the federal judiciary is practically bursting at the seams with right-wing ideologues. Obama’s judges have been confirmed at only half the rate of President Bush’s and one third that of President Bill Clinton’s at the same point in their presidencies.
Yet the right lacks one legitimate ideological objection to any of to the president’s nominees. Obama has not nominated a single person who rivals a Janice Rogers Brown or even a Chief Justice Roberts in their commitment to an out-of-the-mainstream ideology. Indeed, Obama has bent over so far to nominate broadly acceptable judges that only a handful of his nominees have received even token opposition. A massive 29 nominees cleared the Judiciary Committee without a single vote against them of the 38 currently awaiting a vote on the Senate floor.
Obama’s unprecedented willingness to accommodate his opponents’ concerns has been met with equally unprecedented obstructionism. The Senate has not confirmed a single judge for three full months, and various news reports suggest that only half of the nominees waiting for a floor vote will actually receive one. If this happens it will mean that more than a dozen completely noncontroversial nominees will waste months being renominated and rerun through the Senate hearing process.
These delays impose a terrible cost on the thousands of Americans waiting for justice in the federal courts. Today, the average civil litigant waits nearly two years for a full trial on the merits of their case, according to the Administrative Office of the U.S. Courts. This wait is only going to get worse as Senate obstructionism slowly hollows out the federal bench. Nearly half of the 876 federal judgeships will be vacant by the end of the decade if the current confirmation rate does not speed up, according to the Department of Justice’s Office of Legal Policy.
Just as importantly, progressives could see their entire legacy destroyed if they cannot match the right’s crusade to control the judiciary with equal force. Judge Hudson’s blow to President Obama’s most significant accomplishment is but one example.
A Reagan appointee to the federal bench suspended all federal funding for potentially lifesaving embryonic stem cell research earlier this year—although this decision is currently being stayed pending an appeal. A bevy of judges with significant financial ties to the oil industry also blocked the Obama administration’s moratorium on new deepwater drilling during the Gulf oil disaster. And the Supreme Court’s egregious Citizens United decision will make it nearly impossible for candidates with a record of taking on wealthy corporate interests to be elected to public office.
With some members of Congress now claiming that landmark accomplishments like Social Security, Medicare, and the federal ban on whites-only lunch counters violate the Constitution, it’s clear that everything progressives cherish could be on the chopping block if the right consolidates its control over the judiciary.
Simply put, it’s time for progressives to admit that the waters around us have grown. We ignore the judiciary at our own peril and at the peril of millions of Americans who depend on progressive legislation for their health and well-being. Reversing the right’s 30-year campaign against the Constitution and progressive laws won’t be easy, and it will not succeed overnight. But progressive senators can begin this long-overdue effort today by demanding a vote on each of President Obama’s stalled nominees—and by not letting a single senator go home until these votes take place.
Ian Millhiser is a Policy Analyst and Blogger at American Progress.
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