Article excerpt

A: the start of President Bush's first term, the federal udiciary was almost evenly balanced between Repubican and Democratic appointees.1 In achieving this balance, President Clinton focused less on ideological ends, and appointed a cohort of highly qualified moderates.2 Assessments of Clinton's appointments suggest he also succeeded in fulfilling his goal of diversifying the bench. At the close of his second term, Clinton had appointed more women and minorities to the bench than any of his predecessors/'

George W. Bush, however, has carved out a new presidential strategy for judicial appointments. He has followed the lead of President Reagan and pursued his conservative agenda via the judiciary while simultaneously continuing the Clinton legacy of increasing diversity within the federal judiciary.4 At the end of his first term, it seems clear that President Bush was able to balance these two goals admirably. While not appointing as many women and minorities as Clinton, in his first term Bush outpaced both his father and Reagan in the number of nontraditional appointments to the federal bench. Likewise, early assessments of the voting behavior of his nominees confirm that they are quite conservative, especially in the areas of civil rights and liberties.5

Before we conclude that Bush has been successful in marrying the goals of increasing diversity and conservatism on the bench, we need to assess these appointments in terms of diversity as well as the appointment strategy pursued when nontraditional judges were selected. Often presidents are evaluated based upon the aggregate ideological, racial, ethnic, and gender complexion of their appointments.

Generally speaking, to satisfy both key constituencies and history presidents must simply illustrate a reasonable degree of behavior diversity in filling vacancies. However, aggregate assessments may be misleading. Advocates of diversity push this agenda because women and minorities bring traditionally excluded perspectives to their work.6 For such perspectives to have an impact, nontraditional judges must be present beyond token levels.7 Therefore, the impact of each president's appointments must be evaluated relative to the changes these appointments produce on individual courts and the bench as a whole.

This article investigates under what conditions Bush sought to diversify the bench, and whether these attempts resulted in increases in diversity. If the President simply engaged in a tit for tat method of appointment-i.e., appointing women to fill vacancies left by women and appointing minorities to fill vacancies left by minoritiesthe overall complexion of the bench would remain as it did when Clinton left office. If, however, like Clinton, Bush's appointments were made mostly without considerations of sex or race and he increased the diversity on the bench, then we can deduce that he achieved his goals.

Often presidents, or governors, profess a desire to diversify their judiciaries. And certainly over the years, the appointment of women and minorities to the federal and state appellate benches has become less controversial. Thus, while the majority of the federal bench remains white and male, it is clear that women and minorities are making headway.8

However, research reveals that often the appointments simply create a token level of diversity. Women and minorities suffer from their own success. Simply put, once a woman or an African American is appointed to the bench, the likelihood that an additional woman (or African American) will join her declines significantly.9 Additionally, this effect seems to be exacerbated by merit selection systems.'" In such systems, the selectors are cognizant of the current composition of the bench, and this knowledge seems to affect the selection process. Therefore, women and minorities have a difficult time overcoming the obstacle of their own success.

Is there reason to suspect that the Bush administration would be immune to the tendency to pursue a selection strategy that merely maintains rather than increases diversity levels? …