W. BUSH'S JUDICIARY: The First Term Record
Goldman, Sheldon, Slotnick, Elliot, Gryski, Gerard, Schiavoni, Sara, Judicature
American politics intensified during the 2004 presidential election year. Although the appointment of judges was not a major issue in the campaign, both parties addressed it in their party platforms ' and on occasion the issue was publicly raised, particularly with regard to the Supreme Court.- When the hoopla was over, George W. Bush won reelection by a narrow electoral college victory and he and his administration returned to the business of government-including staffing the judiciary, which has been a major concern of the Bush presidency and his core constituency.3
This article, a continuation of a series published biennially in Judicature for more than a quarter of a century,4 examines judicial selection and confirmation politics, focusing on the last half of W. Bush's first term. We also offer comparisons of the demographic portrait of W. Bush's entire first term appointees with his four immediate predecessors in the White House.
Our narrative of appointment and confirmation processes and politics is based primarily on personal interviews with key participants and observers both inside and outside government. The statistics on judicial backgrounds and attributes are based on data from the questionnaires completed by all judicial nominees and submitted to the Senate Judiciary Committee. Other sources of data include home-state newspaper articles, standard biographical reference works,5 and, in some instances for information about political party affiliation, the Registrar of Voters or Boards of Elections for the counties in which the judges resided. Some missing biographical information was generously provided by appointees themselves.
A key to understanding the high level of tension and confrontation, particularly concerning appointments to the courts of appeals, is the recognition that W. Bush was elected president in 2000 after losing the popular vote but winning a Supreme Court decision in Bush v. Gore.6 Democrats, still stewing from Republican obstruction and delay of Clinton nominees during the last six years of the Clinton presidency when Republicans controlled the Senate,7 were outraged when, from their perspective, the Bush administration, instead of seeking compromise and consultation with Democratic senators in the appointment of judges, particularly to the appeals courts, acted as if the President had won a national mandate.
When in June of the first year of W. Bush's presidency the Democrats gained control of the Senate, the administration continued to deny the legitimacy of the Democrats' grievances surrounding judicial selection and the Democrats brought obstruction and delay of appeals court nominees to an unprecedented level.8 In the congressional elections of 2002 the Republicans regained control of the Senate, leaving the Democrats only the filibuster as a way to demonstrate opposition to particularly objectionable nominees specifically and the administration's approach to judicial selection in general. Against this backdrop we turn to an accounting of the selection and confirmation processes and politics during the last half of W. Bush's first term.9
THE SELECTION PROCESS
Any assessment of the judicial selection processes followed by the Bush administration continues to be premised, as it was during the first two years of the President's term, in the recognition of the central role judicial appointments play in the President's domestic policy agenda. As noted by Associate White House Counsel Dabney Friedrich:
It is one of the President's most important domestic priorities. He has given a great deal of attention to judgeships over the past four years, and he will continue to do so.10
Giving the issue a broader sweep, Nan Aron, President of the Alliance for Justice, observed, "this President, like his father and President Reagan, made judgeships an instrument of power and symbols of power."" A senior Senate staff member on the Democratic side of the aisle noted that the issue would remain at least as important in the presidential future as it has in the past because of the prospect of Supreme Court vacancies in the next four years as well as the issue's role "both in terms of legacy and in satisfying a number of constituencies. …