The Litmus Test: How the Right Wing Destroyed the Court System

In the past 30 years, the conservatives have transformed our court system into a tool of corporate power, and a force for repression nationwide. The process was relatively simple: demand a litmus test for the approval of all judges who are pending appointment. Refuse to allow any candidate to be approved who does not meet the entire litmus test. By manipulating a compliant media into an arm of the right’s rhetoric, conservatives have been able to block the appointment of virtually every qualified judge appointed by any entity other than the Republican Party.

Over the last three decades, Republicans have put the appointment of conservative judges at the top of their agenda, and controlling the White House 20 of the last 30 years has allowed them to carry out their plan. By the time George W. Bush left office, 60.2 percent of the federal judges, including two-thirds of the Supreme Court, had been appointed by Republican presidents. The younger Bush appointed nearly 40 percent of all federal judges.


To pass muster, the potential judges must be:

  • anti-abortion;
  • anti-gay rights;
  • pro death penalty;
  • against any conceivable regulatory control over corporations;
  • in support of every war-related corporate boondoggle envisioned by the military-industrial complex;
  • anti-welfare or social services or providing health related assistance to any American;
  • anti- affirmative action;
  • willing to imprison juveniles for the rest of their lives; and,
  • in support of all police agencies, regardless of how violent or corrupt they are, and insist upon imprisonment for decades for the broadest range of anti-social conduct imaginable.

They also must not be “judicial activists” – only Republicans are allowed to pursue their favorite right-wing causes. Transgressing any of the factors listed above is enough for Republicans to go after any judicial nominee.

This test is a difficult one to pass. Alito, Scalia, Clarence Thomas, and a handful of bigots pass that test, but not many others even come close. By focusing on a violation of any of those issues, the conservatives are able to deny appointment to anyone who falls within the mainstream of American thought.

There are diverse opinions on each and every issue raised by the litmus test; yet, hardly anyone is such a sycophant to corporate wealth, state police and military power, and the myriad of social concerns regarding sexuality, death, abortion, etc., that they fall within the minuscule number of those demanded by the Tea and Republican Parties’ mentality. It is this toxic combination of irresponsible and heartless demands that has destroyed any semblance of justice in our courts.

No Senate action has been (and nothing is on the horizon) on 19 of President Obama’s 38 pending judicial appointments, including two clearly qualified nominees from the Bay Area: Goodwin Liu, a UC Berkeley law professor tapped for the Ninth Circuit Court of Appeals, and federal magistrate Edward M. Chen to U.S. District Court. Both men were caught up in smear campaigns in which distorted portions of their records became fodder for the echo chambers of right-wing commentators.


The impact on our courts is devastating. There are only a handful of judges from past generations with the courage to rule against the police or moneyed interests throughout the country, and these will be replaced as soon as they retire or die off by the sort of conservative fools who now inhabit the benches of our judicial system.

The media loves it. Lazy reporters can call the police for the law enforcement side of every arrest, and print an article totally devoid of fact or fairness. It makes for salacious, titillating reading, and the reporter never has to leave his/her desk or worry about the implications of a totally inaccurate “investigative” report.

The public loves it, because it reinforces the false sense of security derived from locking up “dangerous criminals.” As the joke goes, “kill them all and let god sort it out.”

The police and military love it, because it assures them permanent employment and benefits, and allows them to engage in the most scurrilous actions without any serious accountability. What is astonishing is that police departments and prison guard unions are now made up of individuals who are often more humane and considerate than the judges who cower behind every accusation of excessive leniency. We have indeed come a long way….

Until the public recognizes how destructive and suicidal it is to endorse a society bent on imprisoning the largest possible number of its own citizens, and murdering the rest of humanity in needless wars of aggression internationally, we will continue the downward spiral that has characterized this country for the last 30 years.

Luke Hiken is an attorney who has engaged in the practice of criminal, immigration, and appellate law. Read other articles by Luke, or visit Luke's website.

7 comments on this article so far ...

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  1. bozh said on January 22nd, 2011 at 8:49am #

    sorry, don’t see this at all. u.s. i see as a lawless society from day one of its establishment.
    u.s. ‘laws’ have never been written by any kind of Left, unless the Left in u.s. stands a tad left of franco, mussolini, pinochet, hitler.

    in any case, most people use labels so as to avoid elucidation of what goes on.
    what is see is the fact that 99% of americans voted for just that system of rule and of which jurisprudence is a part. tnx

  2. beverly said on January 22nd, 2011 at 11:19am #

    The “left wing” is no slouch when it comes to destroying the court system either. How much of a fight did Congressional Democrats put up when Alito, Thomas, and Roberts were up for confirmation to the Supreme Court? Obama nominated to the bench two centrist corporatists whose records indicate they’ll side more often than not with their imperialist reactionaries colleagues. Given Obama’s horrendous record on civil liberties and everthing else under the sun, I’m sure his picks for judicial appointments are riddled with questionable selections as well.

  3. Don Hawkins said on January 22nd, 2011 at 2:39pm #

    I didn’t vote and haven’t voted cent’s I found those glasses in the dumpster many moons ago. Now if Huckabee and Palin run on the same ticket maybe I will vote, vote to move to Northern Canada and start digging. You have to admit so far and with known knowledge 100% looney tunes. Known knowledge best to keep it a secret I guess or at least a counter attack of total nonsense just to keep it all fair and balanced.

  4. hayate said on January 22nd, 2011 at 7:10pm #

    “The Litmus Test: How the Right Wing Destroyed the Court System”

    It wasn’t much to begin with, and was decidedly rightwing all along. Though not rightwing throughout, there were some bright spots on the bleak landscape of american judicial history (maybe there are still a few around).

    What has worsened the american judicial system is zionist infiltration. As zionism goes hand in hand with corporate dominance, bigotry, war crimes, you name it, once you stack the system with zionist loyalists, it can only go from bad to worse.

    As for destroying it, how does one destroy a pile of dog crap?

    BTW, it’s rather telling that the author of this piece neglected the support and institutionalising of torture among the things symptomatically wrong in the american judicial system listed in the article. This torture is approved by zionists (it’s as israeli as human organ trafficking), while things like gay rights or legalised abortion is immaterial to them.

    You got probably the single most depraved thing going on in american legal shenanigans (the approval of torture and assassination) and the author of this doesn’t even mention it.

    What does that say?

  5. hayate said on January 22nd, 2011 at 8:13pm #

    Right now, the rest of the world looks upon the usa as torture/war crimes central. When Europeans were asked in polls about which countries most threatened this planet with aggression , the results have consistently put the usa and israel in the top 2 spots. The usa is now associated with torture in the eyes of the people of the world. This is how the world now looks at america, and americans. As an example of how the world looks at americans, now, take a look at this popular music video:


    A few months ago, the song, and video, made it into the top 10, so did the album, the artist’s first effort, in Russia. She is 20 years old, writes her own music/lyrics, and also arranges and produces most of her work. The song itself has several meanings, and levels to those, and the video does a good job of capturing the depth of these. The song title translates as “Do Not Interrupt”, but it could also translate as do not kill, spoil, cut off, throw out, etc. instead. ?? ????????? has more than one meaning. But the meaning applicable to here, and why I posted it, is how americans, their guv and how their law enforcement apparatus is seen outside the usa. From the fbi tag on the agents to the orange jumper she wears, one can see how Guantanamo is being connected to the whole of american law enforcement, and how the torture dungeon in Guantanamo has affected how people now view america. The “land of the [cough] free” has become the land of police state torture. The artist, in an interview, mentioned the song is also about privacy, as well. One can see that in her initial hostile glance towards the surveillance camera and at the end of the video when she punches that camera out.

    The zionists, in turning the usa into an israeli colony, with an israeli way of doing things, have made america in the eyes of the world a torture/police state. In other words, a modern day nazi Germany. It used to be the propaganda had the world viewing torture and police state existence to stalinism, modern day reality now has the usa/israel being the poster children of torture and police states.

    The article reflects upon none of this reality and is still in some bogus alternate universe where zionist manipulated american repub/dem grandstanding constitutes something more real than the adverts for pepsi/coke.

  6. haloeight8 said on January 24th, 2011 at 9:10pm #

    I’m very sad people view Americans by the actions of our shitty government. If there was anything I could do about it, I would. It just runs itself now, and there is nothing anyone can do about it. I’ll just be marked a terrorist, and never seen again if I disagree with them to loudly. There is no difference between left and right, Democrat and Republican. Even if a few of our politicians did care, we’re all trapped in the belly of this horrible machine, and the machine is bleeding to death. I hope I can just go be a mountain man when everything gets really crazy.

  7. mary said on January 26th, 2011 at 3:05am #

    An attempt is being made by the gangsters-in-charge of the US legal system to oppress Maureen Murphy for standing up for Palestine. Do they think she is a terrrrrrrrist?


    SYNOPSIS – Maureen Murphy explains why she prefers to risk imprisonment than testify before a grand jury in Chicago, USA, insisting that she will not be forced to account to the government for exercising her constitutionally protected freedoms of speech and association.