The Decision-Making Behavior of George W. Bush's Judicial Appointees

Article excerpt

An analysis of overall voting patterns indicates that President Bush's judges are among the most conservative on record

What is the ideological direction of the judges whom Preside-in George W. Bush has appointed to the bench during his first term? Until now we have had no quantitative, empirical data to respond to this query. Critics of the President, often liberal Democrats, have suggested that Bush's judicial appointees are ultra-conservatives who arc hostile to the interests of racial minorities, women, the environment, personal privacy, and so on. "Right-wing extremists" is often the catch word of those who have opposed the President's judicial appointments, as echoed in this high ranking Democratic staff member's appraisal of the 2002 elections on the future content of the federal judiciary:

I...believe I liai the outcome ol this election will have very serious consequences because ol the powers of the majority....! think it will he the most successful court packing we have ever seen....! begin [this year] with a great sense ol foreboding and a sense that much of what the most extreme elements in the White House want to achieve will lie achieved within the next two years.1

President Bush and his supporters clearly have a very different view of the men and women whom he is selecting for federal judicial posts. Former Assistant Attorney General Viel Dinh conceded that the administration was eschewing candidates who might appear to be "judicial activists," hut he asserted that

We are extremely clear in following the President's mandate that, we should not, and do not and ran not employ any Lpolidcal-ideological] litmus test on any one particular issue, because in doing so we would Ix; guilty of politicizing the judiciary and that is as detrimental as if we were unable to identify men and women who would follow the law rather than legislate from the bench.2

This article seeks to shed some light on whether or not the President is making 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 might we expect of the Bush administration's potential to have an ideological impact on the federal courts? What do the empirical data tell us so far about the way that the Rush cohort has been deciding eases during the four years of his presidency?

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:3 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. Un the other hand, Presidents Ronald Reagan and LyndonJohnson are examples of presidents who had strong ideological beliefs on many issues and who took great pains to select judges who shared these beliefs. …