Supreme Success

Published December 29, 2008

National Review Vol. LX, No. 24

Dwight Eisenhower called his appointments of Chief Justice Earl Warren and Justice William Brennan his two biggest mistakes as president. With ample reason, George W. Bush regards his appointments of Chief Justice John Roberts and Justice Samuel Alito as two of his best decisions.

In the space of barely six months, from mid-July 2005 to the end of January 2006, President Bush achieved what his Republican predecessors since Eisenhower each failed to accomplish through the whole of their presidencies: the nomination, confirmation, and appointment of two new justices whose sterling qualifications appear to include a deep commitment to respect the broad play the Constitution gives to the operations of representative government. It’s too early, to be sure, to take for granted that Roberts and Alito will prove to be superb justices over the long haul and that they will resist the temptation to “grow” to curry the favor of the liberal elites in legal academia and the media. But their strong performance in their initial years on the Court and their admirable characters and temperaments justify lofty expectations.

Lest Bush’s 2-for-2 record on Supreme Court appointments be underappreciated, it is important to recall that the great Ronald Reagan went only 1 for 3 (a stellar pick in Antonin Scalia, but tragic failings in Sandra Day O’Connor and Anthony Kennedy) — or 2 for 4 if you include his elevation of William Rehnquist to chief justice. Bush’s father batted 1 for 2 (the home run of Clarence Thomas, preceded by the dismal whiff of David Souter).

To the essential virtue of judicial restraint, Roberts and Alito both add the virtue of (relative) youth. Roberts, who became the youngest chief justice since John Marshall, is still only 53, and Alito is 58. It is reasonable to hope that they — and Clarence Thomas, who is only 60 (and nine years younger than the next youngest justice) — will serve on the Court for a long time to come.

The fiasco of the Harriet Miers nomination must be acknowledged. Whatever Miers’s merits, she was surely not in the top tier of qualified Supreme Court candidates. As Reagan did with O’Connor in 1981, Bush made the mistake of deciding in advance that his nominee must be a woman, and Miers was somehow the only one left standing after other, better-qualified candidates were knocked off the list. The conservative movement deserves credit for grasping the importance of what was at stake and objecting vociferously (some publicly, others privately). Bush in the end also deserves credit for taking the difficult step of withdrawing the nomination of his longtime friend. Thus, a Justice Miers is not part of his legacy in the way that O’Connor, alas, is part of Reagan’s.

While President Bush earns the highest marks for Chief Justice Roberts and Justice Alito, his project of restoring the Court to its proper role in a constitutional republic remains incomplete for the simple reason that he was presented with only two Supreme Court vacancies over his eight years in office. The “Roberts Court” bears that title only as a formality, as Chief Justice Roberts is one vote short of a working majority that is broadly aligned with his jurisprudential principles. Roberts, Scalia, Thomas, and Alito form a strong core of four, but in politically contentious cases Kennedy frequently sides with, or even leads, the liberal-activist quartet of Stevens, Souter, Ginsburg, and Breyer in inventing newfangled constitutional rights. So, if President-elect Obama fails to inflict irreversible damage on the Court, it will be up to a future president to pick up where Bush left off and build on his excellent progress.

President Bush’s record on lower-court appointments is much more mixed. Let’s begin with the numbers. Bush appointed 62 judges* to the federal courts of appeals. That’s even fewer than the 65 that President Clinton appointed, amidst bitter Democratic complaints and media buzz about a confirmation slowdown by Senate Republicans. Bush’s total also includes three of Clinton’s unsuccessful nominees whom Bush renominated — two in 2001 in unrequited gestures of goodwill, and one in 2008 as part of a Sixth Circuit deal.** The numbers for the federal district courts are even worse: 261 Bush appointees versus 305 Clinton appointees. The Bush numbers are all the more disappointing as Republicans controlled the Senate for more than half of the Bush presidency, whereas Clinton enjoyed Democratic control for only two of his eight years.

There’s plenty of blame to go around. When they were in the minority, Senate Democrats resorted to unprecedented measures of obstruction. Until the presidency of George W. Bush, there had never been a partisan filibuster against a judicial nominee. In 2003 and 2004, Democrats unleashed the filibuster and succeeded in defeating some 20 cloture petitions on ten different nominees, five of whom — including Miguel Estrada, the superbly qualified nominee to the D.C. Circuit — were never ultimately confirmed. Even as the bipartisan “Gang of 14” agreement in May 2005 permitted some of the filibustered nominees to be confirmed, it undercut what would have been a successful Republican effort to revise Senate rules to forbid the filibuster of judicial nominees.

Many Senate Republicans, meanwhile, seemed to demonstrate more interest in the patronage opportunities that judicial nominations presented them — getting their own home-state folks nominated and confirmed — than in moving Bush’s judicial nominees generally. Indeed, the Senate Judiciary Committee under Republican leadership dramatically expanded the Senate’s “blue slip” policy by giving individual senators an effective veto over judicial nominations in their states (including over federal appellate judgeships, which the laws do not assign by state and whose workload has no more connection to one state than to any other in a circuit). This Senate Republican conferral of extraordinary leverage on obstructionist Democrats explains, for example, why a Fourth Circuit seat regarded as belonging to Maryland has been vacant throughout Bush’s presidency — and why so many other seats were filled with compromise candidates.

After retaking control of the Senate in 2007, Democrats were even better positioned to play hardball. Over the last two years, the Senate confirmed only 10 federal appellate judges (including one former Clinton nominee), compared with 15 confirmed by the Republican-controlled Senate in the last two years of the Clinton administration. Among the nominees left languishing were Peter Keisler, a brilliant lawyer whose nomination to the D.C. Circuit in June 2006 received hearty bipartisan acclaim; Robert Conrad, a Fourth Circuit nominee who, like Keisler, received the ABA’s highest rating and who had the ardent support of both Republican senators from North Carolina; and Glen Conrad, a Fourth Circuit nominee from Virginia, who was pre-approved by Democratic senator James Webb.

The Fourth Circuit, long stalwart in its judicial conservatism, provides perhaps the starkest illustration of the Bush administration’s failure to get its nominees confirmed. The 15-member court, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia, has four vacancies, three of which have existed for the entirety of the Bush presidency. Among the eleven active judges, six are Republican appointees and five (counting Roger Gregory, the Clinton recess appointee who was renominated by Bush) are Democratic. So President-elect Obama will likely soon be able to establish a Democratic majority on the Fourth Circuit.

There is no evidence that the Bush White House ever developed a general strategy to counter Democratic obstruction and Republican indifference in the Senate, and, especially once D
emocrats regained control of the Senate, it’s far from clear what strategy would have been effective.

The good news on the lower courts is that President Bush did succeed in appointing a number of outstanding judges to the courts of appeals, judges who have already made their mark and will continue to do so. Fifteen Bush appointees serving on federal appellate courts are 50 or younger, and several more are just over 50. If and when a future president is ready to help build a real Roberts Court, that president will have plenty of strong Bush appointees to choose from. Let’s hope that President Bush’s full Supreme Court legacy proves to be even greater than his outstanding appointments of Roberts and Alito.
— Mr. Whelan is president of the Ethics and Public Policy Center and a regular contributor to National Review Online’s Bench Memos blog.

* Correction:  The number of Senate-confirmed appointees for Bush is 61, versus 65 for Clinton; if one includes recess appointments, the Bush total is 62, versus 66 for Clinton.

** Correction:  In a gesture of goodwill in 2001, Bush nominated to the Second Circuit Barrington D. Parker Jr., whom Clinton had appointed to the district court.  Clinton had not, however, nominated Parker to the Second Circuit, so Bush’s nomination was not a renomination.

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