Bush’s Judges Already Making Their Mark

The Associated Press notes that, regardless of who President Bush is able to appoint to the Supreme Court during the remainder of his term, he has already put his stamp on the federal courts.

Bush’s Judges Already Making Their Mark (AP)

No need to wait until President Bush appoints a Supreme Court justice to see how he will make his mark on the federal judiciary. One level down, dozens of conservative appeals court judges appointed by Bush already are helping to shape the law in ways that ultimately could have as much, and in some ways even more, impact than the nine justices of the nation’s highest court.

Since Bush’s appellate judges have only gradually taken their seats on benches around the country, and the cases that they draw run the gamut, it’s still early to chart their impact on specific issues. But already it is clear that these judges make up a solidly conservative crowd that tends to lean Bush’s way on the big issues of the day.

So far, Bush’s appointees to the appeals court are showing patterns very close to judges of his Republican predecessors in ideologically contested cases, according to law professor Cass Sunstein at the University of Chicago, where the Chicago Judges Project is tracking the federal judiciary.

“There’s no discernible rightward shift by the Bush appointees compared to the Reagan and Bush I appointees,” said Sunstein. Still, he rejected Bush’s contention that the president looks solely for judges — and Supreme Court justices — who will strictly interpret the Constitution rather than parsing their views on hot issues such as abortion.

“There may be no litmus test, but the president will appoint someone who is in the conservative mold,” said Sunstein. “When the president talks about strict construction, everyone knows what he’s talking about.”

Because appeals courts rule on thousands of cases each year, compared to only about 75 a year decided by the Supreme Court, the impact of Bush’s appellate judges could be far-reaching.

“There’s a tremendous amount of space for circuit judges to interpret Supreme Court decisions,” said Frank Cross, a law professor at the University of Texas at Austin. For example, he said, they have considerable latitude in interpreting the Roe v. Wade decision that legalized abortion.

And according to NARAL Pro-Choice America, appeals court judges appointed by President Reagan and the two Bushes have been four times more likely to issue “anti-choice rulings” than judges appointed by other presidents.

Since those “other presidents” were Jimmy Carter and Bill Clinton, that’s hardly surprising. The gist of the story is certainly true. While Carter didn’t get to appoint anyone to the Supreme Court, the number of lower court judgeships almost doubled and he got to fill those new slots. There’s little question that lower court judges are enormously influential. Indeed, if all the lower courts were was a rubber stamp and training ground for the Supreme Court, hardly anyone would take the huge pay cut that the positions entail.

Still, the Supreme Court’s 75-85 cases a year are the crown jewels. They ultimately decide the most controversial issues of public policy. Aside from inside baseball analysis by legal scholars, then, Bush’s judicial legacy will be judged (no pun intended) by his Supreme Court appointments.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.