W. Bush's Judicial Legacy: Mission Accomplished

Article excerpt

George W. Bush's legacy includes the appointment of like-minded Supreme Court justices and lower court judges selected by a process structured to achieve that result.

George W. Bush left the WIi i te House on January 20, 2009, with an overall legacy that is sure to be debated for some time. That legacy includes the worst financial crisis since the Great Depression, a country at war on two fronts, a crushing deficit, and much unfinished business on the domestic policy front ranging from health care to tax policy. He left office with Democrat Barack Obama winning the White House in the 2008 presidential election with a decisive electoral college and popular vote margin, in marked contrast to the elections of 2000 and 2004 and with Democrats firmly in control of both houses of Congress. He left office with a presidential approval rating that, according to a CBS tracking poll, was the lowest of any president since polling began.1 Yet, George W. Bush left a judicial legacy that even his political opponents concede has had a major impact in the reshaping of the federal judiciary. Indeed, as we suggest here, his judicial legacy may well be Bush's most enduring accomplishment.

The last two years of the Bush presidency were different than his first six years. The congressional elections of 2006 saw the Republicans lose control of both houses of Congress. Ongoing crises both international and domestic no doubt took their toll on the President's ability to pursue his agenda. Democ- ratic control of the Senate, although by a slim margin, meant that it would be harder for the President to gain confirmation of his judicial nominees, especially those perceived by Democrats and liberal interest groups as too ideologically committed to an activist conservative agenda.

Nevertheless, when the last two years of the Bush presidency were over, 58 of the 79 nominees to the federal district courts and 10 of the 22 nominees to the appeals courts of general jurisdiction submitted to the 110th Congress were confirmed by the Senate. In percentages, 73 percent of the district court nominees and 46 percent of the appeals court nominees were confirmed. This was a confirmation rate that modestly exceeded the historic low rates during Clinton's last two years in office (also with an opposition controlled Congress).'2

This article continues the story of W. Bush's judicial appointments, a story that follows the format of previous articles in our biennial accounting of judicial selection during each previously completed Congress/ We pay particular attention to the demographic portrait of the Bush appointments to the lower federal courts and appointment and confirmation processes during Bush's last two years in office (that is, during the life of the 1 10th Congress). We also consider the broader question of Bush's judicial legacy.

Our sources of data include personal interviews with officials in the White House, Department of Justice, and the Senate who played a role in either the nomination or confirmation process (or both) and interest group observers who ranged across the ideological spectrum. For the demographic data on the appointees, we relied on the questionnaires that judicial nominees complete for the Senate Judiciary Committee. Other sources of demographic or background data include newspaper articles and biographical directories.4 Data on political party affiliation or preference was collected not only from the just mentioned sources but in some instances from the Registrar of Voters or Boards of Elections for the counties in which the appointees maintained their primary residence.

We first examine the selection process, particularly during the President's last two years in office, followed by a consideration of the confirmation process during this period of divided government. Subsequent sections consider the demographic portrait of the last two years' appointees to the district and appeals courts compared to the appointees from the first six years; a comparison of the nontraditional to the traditional appointees; and then a comparison of the demographic profile of the entire cohort of Bush appointees for each of those courts compared to the demographic profiles of the judiciaries of Bush's four immediate predecessors. …