As it stands the state of the federal judiciary is one of crisis. More than 160 million Americans live in a community with a federal court vacancy. Additional funding cuts threaten to shut down courts or suspend trials in some areas which means individual seeking justice for claims must wait longer, if they have access to the courts at all. Judicial vacancies not only stress the functioning of the federal judiciary, they threaten the ideological stability as well. A significant reason the federal judiciary is chronically understaffed is because Congressional Republicans refuse to act on nominees out of partisan and ideological spite. The result is a federal bench significantly lacking in any diversity rendering judgments over an increasingly diverse population. Sounds bad, doesn't it? It is, and if Mitt Romney wins the presidency, it will only get worse.
Early in his tenure as governor of Massachusetts, Romney developed a reputation as a man with an eye toward good governance and transparency. His early judicial appointments reflected a wide array of ideologies and experiences and Romney even undertook more substantive structural reforms to combat the practice and perception of political cronyism in judicial nominations.
But it quickly became clear that in order to advance his political career Romney would have to embrace a harder-line conservatism in both ideology and approach to the courts. Chronicles of Romney's political evolution from moderate to hard-right plutocrat are not difficult to come by, but it is his approach to the courts, their independence and their function that deserves much closer scrutiny. And that scrutiny shouldn't be limited to simply the kind of judges a President Romney would appoint to the federal bench, but how his administration would help or hinder the function of the courts in its entirety.
If Romney's early judicial selections as governor of Massachusetts illustrate a belief in the necessity of an independent and ideologically diverse judicial system, his later selections show an embrace of rigid conservatism and the benefits of political payback. In Massachusetts Romney went from nominating openly gay judges to beneficiaries of Bain capital and from embracing oversight of the judicial nomination process to openly working against it.
Fast forward to Romney's current presidential run. Under any other political climate than the current one, having failed Supreme Court nominee Robert Bork as a judicial advisor would be considered a political liability at best and the end of any serious presidential wish at worst. After all, Bork's political and legal career first drew attention back in 1973 when as solicitor general and under direct order from then-President Nixon, he fired Archibald Cox as special prosecutor in the Watergate cover-up. Bork's views on civil rights, including the idea that because women make up a majority of the population gender discrimination is an impossibility, and his belief that integrating public accommodations under the 1964 Civil Rights Act was an "unsurpassed ugliness," would eventually go on to shape a belief that the judiciary must bend its will to that of the people unless expressly prohibited by the Constitution.
If that sounds a bit obtuse let's ground it in the current debate on women's reproductive rights. At least one sitting U.S. Senator is calling on conservatives to simply ignore the mandates of Roe v. Wade and establish fetal personhood via the 14th Amendment. That call to ignoring the rule of law because it is an affront to the will of the "people" is directly out of the Robert Bork playbook.
Combine Bork's ultraconservative orthodoxy when it comes to the federal courts, his shared religious conservatism with Romney and add Romney's deep ties to the private equity world and we could expect most judicial nominations would fit the mold of Samuel Alito – social conservatives with deep and loyal ties to the monied world.
Declaring that a President Romney would appoint staunch conservative judges and practitioners to the federal bench is admittedly not much of a declaration. Place those ultra-conservative justices in a system already structurally strained and stressed from a decade of political attacks and suddenly the federal courts start to look an awful lot like those businesses Romney the private equity baron would take over and kill off.
The obvious problem with that scenario is that we're talking about the federal courts and not a private company on the verge of bankruptcy and prime for a hostile take-over.
Romney may have started his political career in Massachusetts as an advocate of judicial reform, but he did not end it as one. And with the state of our federal judiciary already in crisis the last thing this country can afford is an administration that drives the law further right while dismantling the courts from within.