After nearly seven years in the White House, President Bush has named 294 judges to the federal courts, giving Republican appointees a solid majority of the seats, including a 60%-to-40% edge over Democrats on the influential U.S. appeals courts.
The rightward shift on the federal bench is likely to prove a lasting legacy of the Bush presidency, since many of these judges -- including his two Supreme Court appointees -- may serve for two more decades.
And despite the Republicans’ loss of control of the Senate, 40 of Bush’s judges won confirmation this year, more than in the previous three years when Republicans held the majority.
“The progress we have made this year . . . is sometimes lost amid the partisan sniping over a handful of controversial nominations,” said Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary Committee, in a year-end statement.
This progress is not altogether welcomed by liberal activists, who have been frustrated in their efforts to block more of Bush’s nominees.
“Some of the appeals courts will be quite far to the right for a generation to come. So why is the Senate rushing to confirm as many of these terrible nominees as possible?” asked Simon Heller, a lawyer for the Alliance for Justice, a liberal advocacy group.
He gives the Republicans more credit than the Democrats for adhering to the party line. “Republican senators have voted in lock step to confirm every judge that Bush has nominated. The Democrats have often broken ranks,” he said.
Conservatives tend to agree on that point. They say the ideological makeup of the courts has grown into a major issue on the right, and it has brought Republicans together, whether they are social conservatives, economic conservatives or small-government libertarians.
“This issue unites the base,” said Curt Levey, executive director of the Committee for Justice, a group that lobbies for Bush’s judicial nominees. “It serves as a stand-in for the culture wars: religion, abortion, gay marriage and the coddling of criminals.”
Nothing irritates conservatives more, he said, than having unelected judges decide politically charged issues that some believe should be left to voters and legislators. “Conservatives tend to blame judges for the left’s success in the culture war,” Levey said.
While Republicans find themselves somewhat divided heading into the election year, Bush is widely praised for his record of pressing for conservative judges.
“From Day One, President Bush made the judiciary a top priority, and he fought very hard for his nominees,” said Washington attorney Bradford Berenson, who worked in the White House counsel’s office in Bush’s first term. “He was less willing to compromise than President Clinton. As a result, in raw numbers, he may end with somewhat fewer judges than Clinton had.”
In his eight years in office, Clinton named 367 judges, according to the Federal Judicial Center. When he left office in 2001, Democratic appointees had a slight majority among trial judges and on the courts of appeal.
Among the 12 regional appeals courts, all but one are closely split or have a Republican majority. The 9th Circuit Court of Appeals -- which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington -- is viewed as the last bastion of liberalism, with 16 Democratic appointees and 11 Republicans. So far, Bush has named seven judges to the 9th Circuit, but he will not match Clinton’s total of 14.
Does it make a difference whether a judge was appointed by Bush or Clinton?
Legal activists who closely follow the courts are convinced it does make a difference in a significant number of cases. “If you could pick only one thing, look at whether a case goes before a jury. The Bush judges vote to keep cases away from juries,” said Judith E. Schaeffer, legal director for People for the American Way, a liberal advocacy group in Washington.
In job-discrimination suits, for example, the employee who is the plaintiff typically wants his or her case heard by the jury. The employer -- usually, a business or corporation -- wants the dispute decided or dismissed by a judge, she said.
Schaeffer said her organization has looked closely at such cases and found that Bush’s judges have made it harder for plaintiffs to sue or to win damages if they prevail. “That is the mind-set. They are bent on denying justice to ordinary Americans,” she said.
Berenson, the former Bush administration lawyer, said conservatives and liberal judges differ mostly on their willingness to strike down laws.
“Liberals tend to celebrate judicial power; conservatives tend to be suspicious of it,” he said. “Boiled down to its essence, conservatives want the judiciary to play a smaller role in our society. They want more room for democratic self-government. That means a conservative judiciary will defer to the executive branch on matters like the war on terrorism. And they will be more inclined to defer to the legislature on issues like abortion.”
He cited the example of the Partial-Birth Abortion Ban Act that Congress passed in 2003. In the past, the Supreme Court had struck down similar state bans, but last term, thanks to Bush appointee Justice Samuel A. Alito Jr., the federal law was upheld, 5-4.
In the year ahead, liberal activists will be playing defense. They hope to block as many Bush nominees as possible from winning confirmation to the lifetime seats on the appeals courts. And since the Supreme Court’s two oldest justices -- John Paul Stevens, 87, and Ruth Bader Ginsburg, 74 -- are its strongest liberals, they are hoping a Democrat will win the White House in November.
In the party caucuses and primaries, the issue of judges hardly raises a ripple, but that will change in the months ahead, activists say.
“Once the Republicans and the Democrats have selected their candidates, they will start talking about the courts as a major rallying issue,” said Jay Sekulow, counsel for the conservative American Center for Law and Justice. “Look at the Supreme Court today, and you can say the next president will decide its future for the rest of our lives.”