Saturday, December 4, 2004
What Went Wrong with the 5th?
I'd love to hear your thoughts on how the US Court of Appeals for the 5th Circuit - in line with many broader changes in the legal, social, and political landscape to be sure - moved from its role as the bulwark of implementing civil rights law in the South to its current state as one probably the most conservative Circuit in the US. I commend today's NYT article "Rulings in Texas Capital Cases Try Supreme Court's Patience" to you and then invite your responses to my question.
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I would describe the transformation of the Fifth Circuit as a democratic revolution in the federal judiciary.
For a long time, people generally didn't pay much attention to the federal judiciary. The electorate voted on different issues, leaving the political elite to choose whatever judges they liked. And the judges they chose tended to be drawn from, or at least greatly influenced by, the academic elite of the most prestigious law schools.
None of this mattered until these judges started to impose their will on the people, who never voted for them. Once they started doing this, the people started to wake up to the importance of judicial ideology. From judicially decreed busing to the removal of all legal protections for the unborn, the people realized that they had to reassert their reassert their democratic, legislative authority against the pretensions of unelected, elite judges.
That's what's happened in the Fifth Circuit, thanks in large part to the control that (democratically elected) senior senators have over judicial appointments in their own states.
This trend will tend to increase nationwide because of the ascendency of conservatives in the majority of the states in the country. Because states and not the people as a whole are represented in the Senate, which confirms judges, and because conservatives are distributed throughout a larger number of states than liberals are, conservatives are going to get closer and closer to the filibuster-breaking sixty senators needed to confirm judicial nominees. This trend happens to coincide with the likely retirement of several Supreme Court justices, which will mean that a conservative President and a conservative Senate will be able to appoint young, conservative judges who will dominate the court for decades.
This, along with the lock that the Republicans have on the House through gerrymandering and other means, along with the advantage that Republicans have winning the presidency because of the electoral college, means that the first half of the twenty-first century will be a time of conservative dominance of American law and politics. (Oh, and let's not forget the inroads that Republicans are making with Hispanic voters, the fastest growing segment of the population, who are heavily concentrating in the fast-growing, conservative states of the Sun Belt.)
With respect to politics and law, liberals are simply going to have to become more federalist, or regionalist, meaning that they are going to have to focus on governing their own Blue State strongholds, giving up on any hope of controlling the federal government or the Red States. Remember, overturning Roe v. Wade doesn't make abortion illegal nationwide; it only makes it illegal in the states that choose to make it illegal. People in California, New York, and Massachussetts will be as free as ever to kill their babies.
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