Just two days before Christmas, the White House announced its intention to renominate to the federal bench 20 radical right-wing and corporate-friendly extremists whose nominations had been thwarted in the 108th Congress. The White House will be supported in this effort by both social conservatives, who see Bush nominees as friendly to conservative positions on controversial social issues like abortion, and the corporate sector, which is dedicating millions of dollars in an unprecedented lobbying effort on behalf of the Bush judicial picks. Safeguards at Stake Although a few high-profile issues such as abortion rights and the separation of church and state tend to dominate discussion of the implications of Bush�s judicial selections, these particular nominees pose an equally great threat to corporate accountability and the use of regulatory policy to serve the public interest. Many of the nominees show signs not only that they will consolidate the pro-industry bias of many Republican-appointed jurists on the bench but, further, that they are proponents of a radical right-wing philosophy that seeks to undermine the power of the federal government to create national solutions for nationwide needs. Radical Right-wing Philosophy Several of the Bush nominees for federal appeals courts subscribe to a radical right-wing theory of constitutional law that would trade the New Deal for a raw deal. As stated most clearly in a book review and a speech by Judge Douglas Ginsburg (also a former White House regulatory czar and unsuccessful Supreme Court nominee), this extremist philosophy advocates a return to pre-New Deal constitutional doctrines construing the Constitution as forbidding early progressive efforts such as bans on child labor and hour and wage controls. After FDR announced the eventually unsuccessful court-packing plan, the Supreme Court brought this doctrine (generally referred to as the Lochner era) to an end. Since then, the federal courts have found in the Commerce Clause, the Spending Clause, and section 5 of the Fourteenth Amendment expansive power to regulate in the public interest. Radical right-wing extremists actually advocate a return to Lochner. One of the returning nominees, Janice Rogers Brown, declared in a speech that the New Deal �cut away the very ground on which the Constitution rests.� In Ginsburg�s memorable turn of phrase, the Constitution went into �exile� after the New Deal reversal of Lochner and its progeny. Returning Lochner from exile could mean, in a contemporary context, any of the following threats to regulatory policy: Cabining the Commerce Clause. The Commerce Clause is perhaps the most important source of congressional power to legislate in the public interest, in particular for the environment and workplace health and safety. The Rehnquist Court has already struck the first blow, most dramatically in its rejection of the Gun-Free School Zones Act and the Violence Against Women Act, which were the first court decisions in 60 years to find a congressional act unconstitutionally exceeding Commerce Clause authority. Dusting Off the Non-Delegation Doctrine. The very basis of modern regulatory policy is that Congress delegates broad grants of authority to regulatory agencies, which are empowered to work out the technical details of public-interest legislation in regulations that have the force of law. Lochner-era courts flirted with a harsh version of the Separation of Powers doctrine that would forbid this kind of delegation of legislative authority. Notably, the occasion for Ginsburg�s infamous phrase �the Constitution-in-exile� was a review of a book entitled Power Without Responsibility: How Congress Abuses the People Through Delegation. Pitting Property Against Protection. The Takings Clause forbids the government from taking private property unless it compensates the property owner, the classic example being eminent domain. In the hands of radical right-wing extremists, who maintain that property rights should be elevated to the same status as personal civil liberties such as free speech, the Takings Clause could be expanded to turn regulation into unconstitutional takings. Regulation of the environment or workplace safety, for example, would be effectively blocked by a requirement to pay corporations for their lost profits. Making Mandates Meaningless. Although it receives less attention than the Commerce Clause from critics of the radical right-wing threat, the Spending Clause is also under attack. Through the Spending Clause, Congress is able to ensure that states receiving federal funds for programs such as foster care and Medicaid meet certain minimum standards. For example, the Adoption and Safe Families Act forbids states receiving federal foster care funds from allowing children to languish in foster care for excessive periods of time without having plans for permanent outcomes. Although the primary means of establishing these standards is the carrot of federal funding, public interest groups have successfully used civil rights litigation to bring in the stick of court injunctions. Radical right-wingers advocate harsh interpretations of the Eleventh Amendment, non-constitutional federalism doctrines, and the standards for finding enforceable rights in federal statutes in order to close out victims of state indifference from making these mandates meaningful. Scaling Back Civil Rights. Civil rights are already under attack as the Spending Clause and section 5 of the Fourteenth Amendment are constricted, but they are further imperiled by some radical right-wingers who hew to originalist readings of the Constitution and reject the possibility of any civil rights not spelled out specifically in the Constitution. Many basic civil rights � such as the right to privacy of married couples and the rights of parents to raise their children without undue interference from the state � are not spelled out as such in any specific clause but are considered �implicit in the concept of ordered liberty� and thus arising from the penumbra of existing constitutional clauses. Giving States More Rights than People. A recurring theme throughout the radical right-wing project is an advancement of states� rights as a countervailing force against federal regulatory policy. As states secure more rights against federal mandates, the downside will be felt by both vulnerable populations relying on state administration of federal programs as well as state and local government employees, who are being excluded from the expansion of rights for other workers. Several of the Bush nominees � most notably Janice Rogers Brown, Thomas B. Griffith, William Myers, Patricia Owen, and Bill Pryor � subscribe to one form or other of radical right-wing extremism. Another, Michael Kavanaugh, has been instrumental in helping the Bush administration pack the courts with other radical right-wing extremists. Industry Connections and Bias A troubling related development is the announcement that the National Association of Manufacturers will be lobbying, for the first time, on behalf of the Bush administration�s judicial nominees. C. Boyden Gray, a prominent player in the Reagan and Bush I administrations with a background of running industry-funded front groups for conservative causes, has already been stumping on behalf of these nominees, as has conservative stalwart Grover Norquist. Although a genuinely surprising development, NAM�s announcement is only the culmination of a long-term plan by industry to nurture radical right-wing jurists and pack them into the state courts, where they have been weakening corporate accountability by making it more difficult for injured consumers and wrongfully discharged employees to seek legal remedies. Helping these industry-backed nominees pack the federal courts is a companion to a larger campaign against civil justice and corporate accountability: pass tort �reform� legislation that removes most class action cases from state courts into the federal courts, and pack the federal bench with conservative judges who will rule on behalf of corporate special interests. The campaign is already showing results for industry. According to the Center for Investigative Reporting, Bush nominees to federal appeals courts and courts of claims �are notable for their close ties to corporate interests, especially the energy and mining industries�. The investigation reveals that more than a third of President Bush�s nominees to these federal courts � 21 of 59 nominations since 2001 � have a history of working as lawyers and lobbyists on behalf of the oil, gas and energy industries.� Analyses by the People for the American Way Foundation of split decisions on the appeals courts reveal a pattern of hostility by Bush appointees to civil rights, environmental law, and other public interest litigation. More specifically, the Environmental Law Institute has discovered that Bush appointees are more conservative than even other Republican-appointed judges in National Environmental Policy Act (NEPA) cases. Finally, a report in the journal Judicature concludes that Bush appointees to federal district courts �are among the most conservative on record for all modern administrations, being on a par with Ronald Reagan�s judicial team. Furthermore, in the realm of civil rights and liberties the Bush jurists are clearly the most conservative on record, being a full four points more conservative than even the trial judges appointed by Presidents Reagan or Bush, Sr.� The Perfect Political Opportunity? That corporate special interests have been mounting a stealth campaign to pack the courts with radical right-wing extremists makes sense, given the enormous wealth already pumped into their steady assault on regulatory policy. In some cases, corporate special interests may be at odds with some of the principles of radical right-wing theory. For example, corporate special interests may not agree with the extremists� hostility to federal preemption of state regulatory authority, because it is in the interests of industry to be able to capture a centralized regulatory authority and not have to expend its resources lobbying the regulatory authorities of all 50 states. Such fine points do not matter at this stage, however, because the fight is not over specific tenets of an ideology but, instead, over the person of the nominees themselves. The industry-backed radical right-wingers tend overall to be industry-friendly, and their jurisprudential approach overlaps enough with industry interests to make it worth industry�s millions. Other factors make this a critical moment. The GOP�s use of the social conservative base and the high-profile nature of some controversial social issues mean that a significant grassroots base is already mobilized to defend Bush�s judicial nominees. The recent humbling of Sen. Arlen Specter (R-PA) means that a voice of moderation on the Senate Judiciary Committee may be muted, and the combination of industry support and the threat of weakening the filibuster option may splinter centrist Democrats from the party�s progressive wing � the result in each case being a weakening of Senate resistance to radical right-wingers. Finally, the tendency in the national press to focus on high-profile issues like abortion will keep these more technical and complicated issues off the radar. Federal regulatory policy has been an important equalizing force that raises standards in such areas as environmental quality and workplace health and safety. With the federal government rather than the states setting the regulatory floor, we have been able to avoid an ugly race to the bottom and a destructive return to laissez faire. Radical right-wing jurists find beauty in laissez faire and are wealthy enough to be unharmed by the race to the bottom. The threat to regulatory policy has never been more sweeping, or more real.