Picking Judges in a Time of Turmoil

By Goldman, Sheldon; Slotnick, Elliot et al. | Judicature, May/June 2007 | Go to article overview

Picking Judges in a Time of Turmoil


Goldman, Sheldon, Slotnick, Elliot, Gryski, Gerard, Schiavoni, Sara, Judicature


W. BUSH'S JUDICIARY DURING THE 109TH CONGRESS

Despite increasingly being seen as under siege and in a state of turmoil, it can be argued that judicial appointments represent a success story for the administration in achieving its policy agenda.

The roller coaster of American politics resulted in George W. Bush winning reelection in 2004 in a close presidential race. But, unlike his first presidential win, this time he won with a majority of the ballots cast and without the help of the Supreme Court. Republicans retained control of Congress, the 109th, but there was a continued absence of harmony in the Congress and the country at large. As the controversial and increasingly unpopular war in Iraq continued unabated, as Hurricane Katrina shattered New Orleans and the Gulf Coast and with what seemed to be an inadequate federal response, and as corruption and political scandals tarnished the image of the administration, W. Bush's presidential approval ratings pointedly declined. Indeed, the administration was increasingly seen as being under siege and in a state of turmoil.

Against this backdrop, W. Bush and his administration filled two vacancies on the United States Supreme Court and 50 lifetime judgeships on lower federal courts of general jurisdiction. In this latest installment of the story of W. Bush and his administration picking federal judges, we carry forward the narrative through the events that occurred during the 109th Congress.1

As in previous articles in this series, we first focus on the processes and politics of judicial selection at the White House and Justice Department levels and then the processes and politics of confirmation by the Senate. As before, we rely heavily on personal interviews with key participants and observers. Similarly, as with the other articles in the series, we look at the emerging demographic profile of the W. Bush judiciary and compare that profile with that of the judiciaries of the President's four immediate predecessors.

Demographic data on the appointees were collected from the questionnaires all judicial nominees complete for the Senate Judiciary Committee. Other sources of information include newspaper articles, biographical directories,2 and for information concerning political party affiliation or preference, the Registrar of Voters or boards of elections for the counties in which the appointees maintained their primary residence. In a few instances, the appointees themselves were personally contacted.

Judicial selection during the first two years of W. Bush's second term was highlighted by the President having the opportunity to name a new Chief Justice of the United States as well as a new associate justice of the Supreme Court. Initially an associate justice position became available when Justice Sandra Day O'Connor, much to the nation's surprise, announced on July 1, 2005, her intention to retire pending confirmation of her successor.3 Chief Justice William H. Rehnquist, who had been balding thyroid cancer, had been expected to be the one who would retire. But he gave no indication that he was so inclined and made a show of going into work even during the summer recess. However, his illness took a sudden turn for the worse and the Chief Justice died on September 3, 2005, thus giving the President two positions to fill.

After Justice O'Connor announced her plans, a variety of names surfaced in the media as likely candidates. Within less than three weeks of her announcement, President Bush, on July 19, stated his intention to name U.S. Court of Appeals for the District of Columbia Judge John Roberts to replace O'Connor. Judge Roberts had impeccable professional credentials but the consensus at the time was that his confirmation hearing would determine whether he would win Senate approval or face the fate of Robert Bork's nomination in 1987.

When Chief Justice Rehnquist died shortly before the justices were expected to return to Washington in anticipation of the new term of the Court, the President withdrew Roberts's nomination as an associate justice and instead named him to replace Rehnquist.

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