When we talk about judicial appointments, we usually focus on the Supreme Court — and George W. Bush certainly left his mark there with the appointment of two young, very conservative justices who will shape the decisions of the court for the next few decades. But considering that getting a case up to the Supreme Court is about 10 times harder than getting into Harvard, it’s worth pointing out that other judicial appointments — especially to appeals courts — end up mattering as much or more than who is appointed to the highest bench. And George W’s have not been good.
As a result of Bush’s 311 appointments to federal district courts and the appellate bench, judges across the country are more male, more white and slightly more Hispanic than those in place at the end of Bill Clinton’s presidency. A third of the nominees during Bush’s first term had “a history of working as lawyers and lobbyists on behalf of the oil, gas and energy industries,” according to a study by the Center for Investigative Reporting.
A University of Houston study of rulings by Bush’s district court appointees through 2004 found that 27 percent of the judges supported what might be considered “liberal” outcomes in litigation related to the Bill of Rights or civil rights — “giving the President the lowest score of any modern chief executive,” according to the author, Robert A. Carp. Bush’s judges also were much less likely to express support for privacy rights.
District and appellate appointments usually fly below the radar, and so presidents with an agenda can easily stack those benches with ideologues who will make law for decades to come. Here’s some of what we can expect from these appointees in the future:
Bush’s appointees nationwide have generally been “less hospitable” to allowing groups without direct financial interests to intervene in court, said University of Pittsburgh law professor Arthur D. Hellman, an expert on federal appellate courts. That viewpoint skews litigation by giving “less attention to values that are not measured in dollars,” he said.
In June, a Republican-appointee majority of the 8th Circuit — with jurisdiction over seven Midwestern and Plains states — lifted an injunction against what is perhaps the most radical anti-abortion law in the country: a South Dakota law requiring that doctors read a five-point tract meant to discourage women from proceeding.
The tract states a view that no court had previously sanctioned, namely that “abortion will terminate the life of a whole, separate, unique, living human being” and that by having an abortion, a woman will sever her “existing relationship with that unborn human being.”
The court’s majority said the will of the state legislature should be respected. But in dissent, Judge Diana E. Murphy, a Clinton appointee, accused the majority of bypassing “important principles of constitutional law.”
Obama can certainly appoint more progressive judges, but he can’t undo this kind of damage.