Right on the Decision-Making Behavior of George W. Bush's Judicial Appointees

Article excerpt

In terms of overall voting patterns, President Bush's judges are clearly the most conservative on record for all modern administrations.

What is the ideological direction of the judges appointed by former President George W. Bush during his eight years in office? There is no doubt now that his appointees to the U.S. Supreme Court, Justices Samuel Alito and John Roberts, have established records as ideologically conservative jurists. Less empirical information has been available about the voting patterns of his appointees to the lower federal judiciary.

In a preliminary study published in 2004 we suggested that "President Bush's judges are among the most conservative on record for all modern administrations, being on a par with Ronald Reagan's;"1 but the number of cases available at that time was relatively small, and so the conclusions had to be somewhat tentative. However, after studying the Bush cohort for eight years and analyzing some 2680 decisions of his district court appointees, we are now in a position to make more definitive and concrete assessments. In a word, the Bush team is on the whole the most conservative on record, and the data suggest that these jurists appear to be more conservative than they were when their ideological propensities were first measured some five years ago.

This article seeks to shed empirical light on whether or not President Bush made ideologically based appointments and whether his judicial cohort is deciding cases in the manner anticipated by most court observers. It is organized around two basic questions: What should we have anticipated of the Bush administration's potential to have an ideological impact on the federal courts? What do the empirical data tell us about the way the Bush cohort has been deciding cases during the past eight years?

A sympathetic judiciary

Judicial scholars have identified four general factors that determine whether chief executives can obtain a judiciary that is sympathetic to their political values and attitudes:2 the degree of the president's commitment to making ideologically based appointments; the number of vacancies to be filled; the level of the chief executive's political clout; and the ideological climate into which the new judicial appointees enter.

Presidential support for ideologically based appointments. One key aspect of the success of chief executives in appointing a federal judiciary that mirrors their own political beliefs is the depth of their commitment to do so. Some presidents may be content merely to fill the federal bench with party loyalists and pay little attention to their nominees' specific ideologies. Some may consider ideological factors when appointing Supreme Court justices but may not regard them as important for trial and appellate judges. Other presidents may discount ideologically grounded appointments because they themselves tend to be non-ideological. Still others may place factors such as past political loyalty ahead of ideology in selecting judges.

For example, Harry Truman had strong political views, but when selecting judges he placed loyalty to himself ahead of the candidate's overall political orientation. On the other extreme, Presidents Ronald Reagan and Lyndon Johnson are examples of presidents who had strong ideological beliefs and who took great pains to select judges who shared their beliefs. In the middle was President Bill Clinton who made some attempt to appoint judges based on their ideology, but who was also interested in selecting judges who were more diverse in terms of ethnicity and gender.

What do we know about whether or not former President George W. Bush was committed to making ideologically based appointments? The evidence suggests that the former president did indeed use ideology as a basis for his judicial nominations. Recall, for example, thatjust prior to the 2000 election he publicly expressed admiration for Justice Antonin Scalia, who (along with Justice Clarence Thomas) is one of the two most conservative members of the Court/ Justice Scalia usually interprets the Constitution as restraining congressional power to regulate commerce and seeks to limit the expansion of many Bill of Rights freedoms (generally conservative positions). …