George W. Bush's Legacy on the Federal Bench: Policy in the Face of Diversity

By Diascro, Jennifer Segal; Solberg, Rorie Spill | Judicature, May/June 2009 | Go to article overview

George W. Bush's Legacy on the Federal Bench: Policy in the Face of Diversity


Diascro, Jennifer Segal, Solberg, Rorie Spill, Judicature


As presidents exit the main stage of politics, discussion focuses upon their endur- ing legacy. Judicial nomi- nations are often a centerpiece of that pur- ported legacy. Insofar as they are outlived on the political landscape by judges with lifetime tenure, presidents seek longevity of their political values and policy agendas through judicial selection. Always a complex calculus of presidential goals, nominee characteristics, institutional constraints, and opportunity, executives since Jimmy Carter have faced an increasingly significant consideration as they nominate judges to the federal courts: diversity. Indeed, die appointment of nontraditional (nonwhite and female) judges has become a political imperative; there is an expectation that appointments be somewhat representative - however symbolically - of the American populous. Thus, presidents have sought to balance myriad factors, particularly their own policy preferences, with the need to diversify the bench. President George W. Bush is no exception.

However, we contend that a president's legacy for diversifying the bench is best understood as a combination of the aggregate number and the replacement pattern of nontraditional appointments. When assessed in this way, Bush's legacy of diversity is less auspicious uhan first meets the eye. While he valued diversity and considered it - seriously, at times - Bush's legacy is more accurately described as one that emphasized ideological and policy considerations. In the final analysis, we contend that his motivation for appointing nontraditional judges was political and strategic rather than principled and altruistic.

Balancing commitments

To be sure, all presidents vary in the balance they establish among the goals involved in making judicial nominations. One way to understand the variation is to compare presidents on their commitment to pursuing policy preferences via ideologically compatible nominees and their commitment to diversifying1 the federal bench. These two dimensions are not necessarily inversely related. Presidents may weigh them equally, either strongly or weakly. Alternatively, they may place more emphasis on one dimension than the other.2 A major commitment to both goals would result in a series of ideologically congruent and diverse appointments; such a president, we argue, has yet to be elected (see Figure 1).

A modicum of attention to diversity combined with a strong preference for ideologically compatible judges produces a record like Ronald Reagan's: a smattering of nontraditional appointments among a large field of reliably conservative judges. Reagan's commitment to using the federal judiciary to further his policy goals is legendary; while he acknowledged the importance of diversity, his resistance to affirmative action policies and the relatively scarce number of qualified conservative minority nominees limited his efforts (particularly in the appointment of African Americans) and the data supports this minor or weak commitment.3

President George H. W. Bush placed a somewhat different emphasis on the two dimensions. Like Reagan, he appointed quite conservative judges;4 but it is his commitment to diversity that distinguished H.W. Bush from Reagan. By current standards, the number of nontraditional judges Bush appointed was not great. Still, he not only encouraged Republican senators to suggest nontraditional candidates and made the unprecedented decision to engage women at the White House and the DOJ in the judicial selection process, but the data indicates clearly that Bush appointed more women to the federal bench than any president (including Carter) before him.5 As a result, we think it fair to categorize H.W. Bush as having a moderate commitment to diversity, particularly given that his presidency corresponded with the growth of stronger expectations of diversity on the bench but also the limited choices he presumably had given his ideological goals and the political requirements of his party. …

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