The "BUSH Twins"? Roberts, Alito, and THE CONSERVATIVE AGENDA

By Perry, Barbara A. | Judicature, May/June 2009 | Go to article overview

The "BUSH Twins"? Roberts, Alito, and THE CONSERVATIVE AGENDA


Perry, Barbara A., Judicature


President Gerald R. Ford, despite his brief tenure as the nation's chief executive, had the opportu- nity to make one appoint- ment to the United States Supreme Court in 1975. Thirty-four years later, Ford's nominee, Justice John Paul Stevens, at age 89, remains on the Court, approaching the tenure record of his predecessor Justice William O. Douglas (36X years) and the age milestone of Justice Oliver Wendell Holmes (who was 90 when he retired). Stevens has voted in more than 3,300 cases. As Ford observed in his presidential memoir, "Few appoinunents a president makes can have as much impact on the future of the country as those to the Supreme Court."1

If President George W. Bush's two appointees to the Supreme Court match Stevens's longevity they could still be on the high tribunal in 2040! Predicting their future votes on the Court may be problematic. Who could have known that Republican appointee Stevens would become a generally reliable member of the Court's liberal bloc in the course of his long career?2 Yet, regardless of how Bush's appointees may vote in the distant future, their initial Supreme Court opinions reflect a conservative agenda that reaches back to the conservatism of Ronald Reagan.

Bush's first appointment

In an interesting historical coincidence, Reagan appointees Sandra Day O'Connor and William Rehnquist created the two vacancies for George Bush to fill on the Court. Conservatives were elated over O'Connor's announced retirement on July 1, 2005. Finally, they could glimpse the promised land where her moderate swing vote would be replaced by a reliably conservative one. The media reported that Judge John G. Roberts, Jr., of the U.S. Court of Appeals for the D. C. Circuit, fit this profile.

Roberts had it all: a stellar undergraduate and law school education at Harvard, judicial clerkships with two of the most well-respected conservative judges on the federal courts (Henry Friendly, of the 2nd Circuit, and William Rehnquist, when he was an associate U.S. Supreme Court justice), gov- ernment service in the Jus- tice Department and White House Counsel's Office dur- ing the Reagan and Bush I administrations, appellate advocacy at die prestigious Washington law firm of Hogan & Hartson, two year's experience on the U.S. Court of Appeals for the District of Columbia (to which Bush had appointed him in 2003), appropriate age (at 50 neither too untested nor too old), a congenial and modest personality, and an ability to follow his conservative principles effectively, without aggression or belligerence. (See Table 1).

During the contested 2000 presidential election, Roberts had worked behind the scenes to provide legal advice to Bush's lawyers and his brother, Jeb, the governor of Florida, on how to swing the Sunshine State's electoral votes to Bush's column. Finally, in a perfect coincidence, on the day of Roberts's interview with the President for O'Connor's seat, the D. C. Circuit announced its decision favoring the Bush administration's policy of trying terror suspects before military tribunals, which Judge Roberts supported.

In fact, Roberts's two years on the D. C. Circuit provided the Bush administration with a preview of how he might vote on the nation's highest tribunal. As a federal appeals court judge, he had written nearly 50 opinions. His rulings rarely drew dissents from his colleagues on the D.C. Circuit; likewise, he infrequently issued dissenting opinions. To conservatives, this signaled that Roberts takes a narrow view of the law, avoiding the sweeping judgments of more liberal judges, which might attract dissents. His restraintist tendencies appeared in his first appeals court opinion, a dissent from the circuit's decision not to reconsider a three-judge panel's ruling protecting a toad under the Endangered Species Act. Roberts wanted to give a developer in California, whose business had been trumped by the "hapless toad," a chance to argue before the entire circuit that the panel had erred in its application of the pro-environment legislation. …

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