The Imperial President has left office, but his spirit lives on in the Imperial Judiciary, which may well be his most lethal legacy to America. In this multi-part Report, Eagle Forum's Court Watch analyzes the state of the federal judiciary at the end of the Clinton Era. This extensive analysis will include an overview of federal judicial appointments and their impact on American law, an in-depth analysis of Senate vote on judicial nominees, a review of Senate procedures for handling judicial nominees, a report on Congressional creation of new judgeships, and a blueprint for dethroning the Imperial Judiciary and restoring to America a government of law, not of men.*

(1) Bill Clinton fared extremely well in his judicial nomination efforts, despite constant Democrat charges that the Republicans controlling the Senate his last six years in office were strangling his nomination efforts:

• Clinton appointed 374 federal judges, 47% of the total number of federal judges. The Senate rejected only one Clinton nominee (Ronnie White) and formally confirmed 373 of the 374 appointees. The 374^th appointee (Roger Gregory) and another nominee so far unconfirmed (Bonnie Campbell) illustrate the despotic determination of Clinton to stack the judiciary with activist/liberal judges, and to use racism and gender discrimination charges to try to force Senate approval of his more radical nominees. (Figure 1)

  • Appointee #374 was Roger Gregory to the Fourth Circuit Court of Appeals. With no prior judicial experience in federal law, Gregory was first nominated on 6/30/00 to a seat which had never been filled since its creation in 1990 because an occupant was not needed. The Chief Judge of the Fourth Circuit so declared; and a Senate Judiciary Subcommittee studying the Courts reported in 1999 that the Fourth Circuit had the fastest case disposition rate of any of the federal circuit courts. Adding judges to the present complement might even render the Court less efficient, as additional judges tend to increase the bureaucracy. Clinton & Co. branded the GOP's failure to act on Gregory (who is black) as "racist," but the Republicans refused to be bludgeoned into action by this inflammatory falsehood.

    None daunted, the lame duck, Imperial President committed one of the most audacious, unconstitutional acts in a career already characterized by such acts. He "recess appointed" Gregory to the Fourth Circuit on 12/27/00 after the 106^th Congress had adjourned. The Constitution permits recess appointments only to vacancies which occur while the Senate is out of session (recall that the "vacancy" in Gregory's seat had existed ever since its 1990 creation). This appointment also marked the third time that Clinton broke a promise he made in 1999 not to engage in such actions.

  • Another Clinton nominee, Bonnie Campbell, was nominated to the Eighth Circuit on 3/2/00 and was expected to sail through Senate approval. However, her nomination was stymied by public and senatorial opposition that materialized when her record came to light--she lacked any appropriate judicial experience, was rabidly pro-abortion, feminist, and anti-Christian, and supported Congressional legislation which the U. S. Supreme Court struck down as unconstitutional. Campbell's opponents were promptly and viciously branded as "anti-female," ignoring the fact that the Senate had confirmed 65% of the female nominees and only 64% of the white male nominees sent to it.

  • Faced with these difficulties, the Imperial President launched a final, last- minute insult to the Constitution and the principle of consent by the government when, at the very end of his term, he nominated Gregory, Campbell, and seven other individuals to the federal bench. All nine nominees had been nominated before but had so few qualifications and so little support that they were not confirmed by the Senate. Clinton's nominations on 1/3/01 and 1/4/01 are "the second time around" for seven candidates, and "the third time around" for the other two. The gravity of this situation is even greater because all nine nominees are slated for seats on the increasingly powerful federal Courts of Appeals.

• As fallacious as the Democrats' charge of racial and gender discrimination against the GOP-controlled Senate is the specter they have raised of a "vacancy crisis" on the federal bench. The facts prove otherwise:

  • On 1/4/01, there were 80 vacancies on the bench, many of them covered by senior judges; 
    
  • Of these 80 posts, 10 had been created by the 106^th Congress just before it adjourned in December; 
    
  • Thus, there existed only 70 vacancies upon which the Senate could possibly have acted; 
    
  • Because Clinton's own Justice Department had declared 63 vacancies to constitute "full employment" in the judiciary, the 70 vacancies hardly constituted a "vacancy crisis"; 
    
  • Of these 70 vacancies, there were approximately 30 for which Clinton had named no nominee; 
    
  • These 70 vacancies compare quite favorably to the approximately 100 vacancies which the Democrat-controlled Senate left the first President George Bush in 1992; 
    
  • The Democrats' indignation over vacancy levels is remarkably selective. Chief Justice William Rehnquist in his Year-End Report on the Federal Judiciary for 1997 lamented Bill Clinton's failure to make any nominations to fill six seats on the seven-member U. S. Sentencing Commission. In his Report for 1998, the Chief Justice described the Commission's problems as having "reached stunning proportions." At that time, the agency had no Commissioners, and no nominations were pending. Though not a highly visibly organ, the Commission is considered by the Chief Justice to "serve a vitally important function."
   
  
• Only one U. S. President (Ronald Reagan) appointed more judges (378) than has Clinton, but Reagan judges constitute only 22% of the current judiciary. (Figure 2) 
  
• There are now more Democrat appointees than Republican appointees on the federal bench. (Figure 2) 
  
• Over the last 20 years, there has been no significant difference in the annual Senate confirmation rate of judges, whether the Senate and the President were of the same, or different, parties; annual confirmation averages are:

  • Reagan: 47.3/year 
    
  • Bush, I: 48.5/year 
    
  • Clinton: 46.6/year

(2) Clinton judges have profoundly affected American constitutional law. Their activist/liberal philosophies are typified by decisions such as the following, where they:

• have opposed partial birth abortion bans, general health facility regulations for abortion clinics, city and county seals containing crosses, prayers before school board meetings, a ban on homosexual scout leaders by the Boy Scouts of America, and teen curfews in an area where 85% of the juvenile crime would have been covered by the curfew;

• have supported the right of minors to an abortion without parental consent, the right of prison inmates to possess sexually explicit material, the right of state college professors to access pornography on state-owned computers, the rights of criminal defendants in appellate courts more than twice as often as other judges, and the right of a solidly Democrat state Supreme Court to unilaterally, ex post facto rewrite state election laws to swing the 2000 presidential election to the Democrat candidate.

(3) The backgrounds of Clinton's appointees strongly indicate that they will continue the activist/liberal politics of their brethren already on the bench. Some of Clinton's most controversial nominees, Ronnie White, Timothy Dyk, Marsha Berzon, Margaret Morrow, and Richard Paez (all but the first confirmed) have staunchly supported judicial activism, affirmative action, abortion, pornography, the radical feminists, pro-criminal defendant decisions, gay rights, and Big Labor. Lack of judicial experience and temperament have also characterized a number of Clinton nominees.