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Judicial Selection During the Bush Administration: 2008 Edition

Practice Area: Judicial Selection Project - ADDED 10/06/08

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Publication Year: 2008

Length: 90 pages

Cost: No charge



»  Judicial Selection During the Bush Administration (pdf)


EXECUTIVE SUMMARY

  • Judges appointed by Republican presidents dominate the Supreme Court, the courts of appeals, and the district courts.  Over 58% of all federal judges were appointed by Republican presidents.  George W. Bush has appointed nearly 37% of all sitting federal judges.
  • Many of President Bush's judicial appointees have had a significant and detrimental effect on the law, and have instead advanced the President's political agenda.  These effects include erosion of the right to privacy, approval of pay discrimination, insulating large corporations from liability for harm caused to Americans, and prohibiting communities from using the democratic process to ensure racially diverse schools.
  • President Bush has used the judicial selection process not simply to advance his political agenda at the expense of legal principles, but also as a tool to galvanize his base.  In doing so, he has never hesitated to ignore the Senate's advice and consent role by failing to consult with Senators of both parties.  This is a sharp departure from prior practice.
  • President Bush's judicial legacy is only beginning to unfold as the judges he appointed will continue to render decisions for decades to come.  Only the active involvement of the American people can steer the federal judiciary back towards balance after eight years of court-packing.

OVERVIEW

As the nation turns its eyes to this year's election (in which not only a new President, but also a third of the Senate will be chosen), President Bush's judicial selection policies have particular significance and should inform voters' choices in November.  The next President is likely to appoint several justices to the United States Supreme Court, and dozens of court of appeals judges, all for lifetime appointments.  The election on November 4 provides voters with their most important opportunity to influence the direction of the judiciary over the coming years, and they should do so mindful of the effects the federal courts have on their lives. 

SUPREME COURT

The records of Chief Justice Roberts and Justice Alito demonstrate their willingness to move the law in a rightward direction.  Both voted to dispense with women's health in an abortion case that eroded prior precedent.  Both voted to ignore prior precedent by announcing a new individual right to own handguns.  Both dissented from a decision upholding the writ of habeas corpus against executive branch encroachment.  Both voted to depart from precedent and throw out Lilly Ledbetter's pay discrimination lawsuit based on a flawed reading of federal statutes designed to protect workers from discrimination.  In fact, Roberts and Alito agreed with each other fully in 81% of the cases and disagreed with each other in only 12% of the cases decided in the 2007 Term.  These percentages are the highest and lowest, respectively, of any two justices.  Together, these two Bush appointees compose a conservative juggernaut that relentlessly implements the ultraconservative political agenda.

LOWER COURTS

Although they often escape public notice, the circuit courts play a substantial role in shaping the law—something the Right has long understood.  On the vast majority of issues confronting the federal courts, the circuits are the final arbiter, as the Supreme Court hears only a relative handful of cases.  In 2007, for instance, the circuit courts decided over 60,000 cases, while the Supreme Court, in its 2007 Term, decided just 71.  The records of President Bush's court of appeals appointees demonstrate that the ultraconservative political agenda is driving the Bush administration's judicial selection practices even more aggressively than it drove those of President Reagan.  In many circuits, President Bush has appointed one or more ideological icons of the right who serve as leaders of the conservative blocs on the circuit courts, such as Brett Kavanaugh on the D.C. Circuit, Michael McConnell on the Tenth Circuit, and Jeffrey Sutton on the Sixth Circuit.  Ten of 13 circuit courts are now dominated by conservative judges, a trend that has been in place for more than twenty years.

President Bush's appellate judges have already begun to implement his ultraconservative political agenda from the bench, often ignoring or distorting precedent in the process.  For example, President Bush's appointees have written opinions that stretch the law and the facts, in order to uphold the strip search of a 16-year-old girl by the government, force a man to pay for books he received through the mail but never ordered, and uphold a display of the King James version of the Ten Commandments in front of a county building.  The district courts are taking a similar course.  According to a study by the University of Houston, President Bush's nominees "turn out to be more conservative on civil rights, civil liberties, and worker and consumer protections when compared not only with Democratic appointees but also with judges named by previous Republican presidents." A more recent study of over 20,000 federal court rulings by Professor Cass Sunstein at Harvard Law School concludes that the lower federal courts "stocked with appointees of Presidents Ronald Reagan, George H. W. Bush, and George W. Bush . . . show a distinctive tendency to strike down agency decisions that do not follow a conservative line."

A POLICY OF PARTISIANSHIP

The fact that the Bush administration has nominated individuals who hold such genuinely transformative views should come as no surprise.  For a generation, the movement conservatives who comprise President Bush's political base have waged a coordinated campaign to remake the law by remaking the courts.  Former Attorney General Edwin Meese counseled in 1988 that "the values and philosophies of the men and women who populate ¼ the federal judiciary" are among the "few factors ¼ critical to determining the course of the nation." President Bush has embraced Mr. Meese's outlook.  Aided for four years in office by a pliant Republican majority in the Senate, and for two years by a slim Democratic majority, he has successfully advanced the Right's long-running court-packing goals.  

While pushing for the confirmation of controversial nominees has certainly been a matter of policy within the Bush administration, it has also been—perhaps to an even greater extent—a matter of raw, partisan politics.  Under the guidance of Karl Rove, the White House used its judicial selection practices to curry favor with the hard-line elements of the Republican base, a base for which the judiciary is "perhaps the single issue dearest to [its] heart," according to Byron York, contributor to the conservative National Review. Even after Rove left the administration, others, notably the ranking Republican on the Judiciary Committee, Arlen Specter (R-PA), have continued to fire up the ultraconservative base.  For example, in May of 2008, Senator Specter threatened the majority with tactics that are "not going to be pleasant," if it did not give hearings to, and confirm, Bush's judges. 

Moreover, the administration has allowed conservative activists to wield substantial influence over the process.  It has deliberately chosen and provoked fights over divisive nominees in order to galvanize its most reliable supporters.  Only in the waning days of his term when his power was at its lowest ebb did President Bush nominate a handful of individuals with any support from Democrats, such as Judge Helene White (to the Sixth Circuit) and G. Steven Agee (to the Fourth Circuit).

REJECTING LONG-STANDING PROCEDURE

In its pursuit of the goal of remaking the federal courts, the Bush administration and its conservative allies have sought to change the very processes by which federal judges are confirmed.

  • The administration jettisoned the time-honored practice of consulting with leaders of the opposing party in the Senate to come up with consensus higher court nominees.
  • The administration removed the American Bar Association from its historical role of vetting judicial nominees before the president sends them to the Senate.
  • Republicans on the Senate Judiciary Committee changed long-standing rules and practices to prevent Committee Democrats from successfully opposing controversial nominees in Committee.  For example, in order to push through the nominations of John Roberts, Deborah Cook, and Jeffrey Sutton, then-committee chair Senator Orrin Hatch (R-UT) set aside a committee rule requiring at least one minority party member to consent to bring any matter to a vote.  Republicans had used some of these very same rules and practices in the 1990s to block more than 60 of President Clinton's judicial nominees. 
  • The rules changes engineered by Committee Republicans left Democrats with no option other than the filibuster to prevent confirmation of controversial nominees.  But Senate Republicans even tried to do away with that, too.  By threatening to invoke "the Nuclear Option"—a plan to break or modify Senate rules in order to eliminate the long-standing right of a substantial Senate minority to filibuster a judicial nominee—the Republican leadership brought the Senate to the brink of what many called a constitutional crisis.  The result was a "compromise" by the Gang of 14 that led to the confirmation of three highly controversial nominees: Fifth Circuit Judge Priscilla Owen, D.C. Circuit Judge Janice Rogers Brown, and Eleventh Circuit Judge William Pryor.

Despite ongoing complaints from conservative activists about Democratic "obstructionism," the Senate thus far has confirmed 316 of the president's 333 nominees on whom final action (i.e., confirmation, rejection, or permanent withdrawal) has been taken—a rate of 95% that includes the confirmation of John Roberts and Samuel Alito to the Supreme Court.  It has also featured confirmation of 61 appointments to the important United States courts of appeals, including several high-profile nominees who had earlier been filibustered. 

A LEGACY TAKES SHAPE

At a conference on judicial independence, then-Attorney General Alberto Gonzales reiterated what movement conservatives have been saying for years:

"[F]ew presidential decisions are more important than lifetime appointments to the federal bench.  Many of a president's policies and programs, no matter how popular or worthy, can be undone by the very next president or the next Congress.  But a judicial appointment lasts a lifetime.  Indeed, these judicial appointments often represent a president's most enduring legacy."

President Bush has undoubtedly pursued his judicial selection policies with this legacy in mind.  And if the still-developing records of many of his confirmed nominees are any sign of what that legacy will be, the law, over time, will look very different than it does now.  The result is almost certain to leave the nation less fair, less free, and less equal.

Nothing less than the future of our Constitution and the basic legal protections for workers, the environment, and equal justice for all is at stake.  This fall, the American people will decide who will nominate the next generation of federal judges, and which senators will decide whether to confirm or reject those nominees to lifetime positions of great power.

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