While there was much ink spilled over the US Attorney scandals and the Bush Administration habit of making political appointments to civil service positions, less attention was paid to the fact that President Bush appointed more than 30 percent of the current federal judiciary. That so many vacancies occurred during Bush's eight years in office is hardly news, but the degree to which they reflect Bush's effort to impose the right-wing/conservative ideology should set off the alarms.  

Without much fanfare, Bush appointed 316 conservative judges to the federal courts. In 10 of the 13 federal circuit appeals courts, the majority of the judges are now Republican appointees. In all, these appointments have had a bone-chilling effect on the federal courts, changing the balance of power in ways that are little noted until a legal case winds its way into the national media. 

To a large degree, stacking the courts accounts for the success of right-wing anti-choice groups and their ability to erode Roe v. Wade. Their success in South Dakota is largely attributable to judicial appointments.

Indeed, it is in the Eighth Circuit federal appeals court where the South Dakota abortion fight is being played out. It was this court that ultimately let stand a South Dakota state law, challenged by Planned Parenthood, that not only severely restricted abortion, but also applied measures of authoritarian rule for doctors and how they are to address their patients.

The Eighth Circuit ruling was a 7-4 decision, illustrating the reach of Bush's hand in shaping policy through the executive power of appointment and the unitary power amassed from lack of strong oversight. Six of the seven judges in the majority opinion are Bush appointees. Two are members of the Federalist Society (a favorite stomping ground for conservatives); one worked as an associate for Kenneth Starr during the Whitewater investigations; two had no previous judicial experience; one worked as a former state director of the Rutherford Institute, the organization that filed suit for Paula Jones against President Clinton; and three had worked on Bush/Cheney campaigns. All of these appointments were confirmed by the Senate with little notice by the media. 

Probably the most openly anti-choice judge now serving in the Eighth Circuit is Judge Lavenski Smith. Smith was appointed by Bush a few days prior to 9/11. His appointment was opposed by NARAL, Alliance for Justice, the National Abortion Federation, Planned Parenthood, and the National Council of Jewish Women, not only because of his extreme anti-abortion activism, but also because of his mediocre qualifications. (The ABA gave him a Q rating, which is like getting a ‘C.') Nonetheless, he was confirmed by the Senate in July 2002 by a voice vote without opposition. 

Smith was appointed to the Arkansas Supreme Court by Gov. Mike Huckabee in 1999, not a surprising pick given Huckabee's well-known, strong opposition to abortion rights. Smith had represented a group in Arkansas, the Unborn Child Amendment Committee, that tried to challenge the use of Medicaid funds to pay for an abortion in a state hospital. The case was particularly egregious since it involved a young teen who was impregnated by her stepfather. Smith lost the case in the Arkansas Supreme Court.  

With only two of the eleven judges on the Eighth Circuit Appeals Court appointed by a Democrat, the court is now one of the most conservative in the country. This is likely part of the reason that the anti-choice groups keep going back there to try to chip away at Roe. The anti-choice groups will not be deterred by the vote against their latest ballot initiative, Initiated Measure 11. Had it passed, they expected it to be challenged and brought to the Eighth Circuit; in fact, that was the point. Anti-choice forces push laws that constitutionally challenge Roe; meanwhile, they work to pass state trigger laws that would outlaw abortion upon the overturn of Roe, comprising the second prong of anti-choice strategy.

Bush's efforts to issue executive orders that will further deregulate limits on corporate behavior and environmental destruction have been widely reported. So has Obama's strategy to derail some of those efforts, including overturning the global gag rule. But Obama can't wave a magic wand and disappear the lifetime appointment of sitting federal judges; they can be removed only by impeachment, a rare occurrence. Decisions made by these appellate courts set precedents for multiple states, making them battlegrounds for right-wing litmus tests. It's also worth noting that all of the current Supreme Court justices were serving as judges in one of the federal circuit courts when nominated. 

While it is likely that Obama will get to select at least two new Supreme Court Justices, choices that will have enormous consequences, we shouldn't forget about the federal appeals courts, the last step before a case gets to the Supreme Court. Most cases never get to the Supreme Court, ending up in one of the federal appeals courts where approximately 28,000 cases per year are decided. The best Obama can do is to appoint more honest brokers to the judicial bench to fill the current three dozen federal district-court and 15 appellate court vacancies (none in the Eighth Circuit), and hope that they will provide a counterbalance to the Bush legacy.  

Given Obama's background and style, he is likely to make reasonable choices and his nominations are likely to be highly qualified. But abortion is only one of many issues that come before these judges and only one of many factors that will weigh on his choice of nominee. And we don't know the degree to which right-wing opposition will assemble to pressure Congress to start bloviating and filibustering to derail a new president with a big agenda.  

We also don't know if or how Bush will attempt to fill any of these vacancies before January 20 rolls around. Bush could appoint "acting" judges to the open positions without submitting their names to the Senate for confirmation. According to the Vacancies Reform Act (1998), judges so appointed can remain in these posts for 210 days and would have the same legal authority as if they had been confirmed by the Senate. Then, when a nomination is made and forwarded to the Senate, the interim nominee can remain in that position for another 210 days or until the new nominee is confirmed. 

Thus, Sen. Reid has not recessed the Senate, scheduling meetings every few days so that it is officially in session. As long as two or more Senators are present, they can immediately adjourn until the next meeting. If Congress can keep this up, they will prevent further Bush packing of the courts and Obama will get to make these judicial appointments.  

It is in the federal circuit courts that the reach of the unitary executive may leave an enduring footprint with little public notice. When Bush submitted nominations for the Supreme Court, the Republicans publicly accused the Democrats of imposing a litmus test and advocating judicial activism if they objected to the nominee. It is true that judicial activism is alive and well, but the usual suspects are not "liberals" legislating from the bench. This is but another example of Republican projection.