Bush’s judicial legacy
January 5th, 2008To the benefit of all of us, most journalists are not fooled by what I call in the book the Old Story of the legal profession, the story that claims judging is an apolitical activity. We get clear-headed evidence of this from David Savage, a legal affairs reporter for the Los Angeles Times, in his “Conservative courts likely Bush legacy,” L.A. Times, January 2, 2008, p. A11. While critics of the Bush Administration have been declaring that Bush’s fiasco in Iraq and scant domestic achievements mean that his presidency will leave no legacy at all, David Savage points out that Bush will at least leave the 294 federal judges he appointed who will likely tilt the courts ideologically to the right for years to come.
Republicans now have a majority of seats on the federal bench, and 60% of the U.S. courts of appeals. None of this is surprising, given that Republican Presidents have ruled more years than Democrats during the lifespan of most judges on the bench today. But it has happened gradually, starting with Nixon and Reagan. It is a slow process to change the political makeup of the federal judiciary, requiring sustained political coalitions in the other two branches over repeated election cycles. And just when the judges have tilted in the direction of the political coalition that put them on the bench, the coalitions usually lose electoral power to their opponents who then begin pushing the makeup of the judiciary the other way. The slowness of the change is the deliberate consequence of the elaborate separation of powers schemes put by the framers into the Constitution to hobble what they viewed as dangerous passions of populist mobs. Conservative populist mobs can be hobbled as well as progressive mobs, of course, but the hobbling structure of the system generally favors government doing nothing (usually more of a conservative value) over doing something (usually more progressive), so the playing field is not a level one for progressives. The federal courts have been conservative during most of the last 200+ years, progressive only during brief periods like the New Deal and the Warren Court eras. Those eras make liberals giddy with hope that judges can be a force for progressive change, but their hope is against the odds of history. Mark Tüshnet has an incisive essay on all this. See, Mark Tushnet, “The Constitution From a Progressive Point of View,” in A Less Than Perfect Union: Alternative Perspectives on the U.S. Constitution (Jules Lobel, ed., New York: Monthly Review Press, 1988).
So what’s a liberal, or a conservative, to do in the face of a judiciary tilting in what they see as the wrong ideological direction? Nothing to do but to fight in the political trenches of the system. Both conservatives and liberals will pull the trick of pretending to be above the battle, seeking only to put “well-qualified,” “intelligent” judges with a proper “temperament” on the bench and touting John Roberts’s childish myth that judges are mere umpires. But behind the scenes, they’re busy selecting and lobbying for candidates who share their ideological values, as they should be.
One of the political trenches in which this battle is carried on is the “blue-slip” policy of the Senate Judiciary Committee, requiring both senators of a state to return a blue form indicating approval or disapproval of the President’s nominees before a confirmation hearing can be held. Senate Republicans held up scores of Clinton nominees for years with this device. When Democrats regained a majority after the 2006 elections, they turned the tables. Other interesting trench warfare has developed in California where the two Democratic senators, Boxer and Feinstein, agreed in 2001 with the Bush Administration to take blue-slip recommendations from bi-partisan commissions of three Democratic and three Republican members. Called “Parsky commissions” after Bush’s California money-man and political operative who helped negotiate the deal, the commissions have seen 27 of their nominees approved for federal district judgeships, but have taken fire from both conservatives and liberals disenchanted with some of the selections. That probably means their selections are ideologically radical centrists whose judicial opinions will sit on the fence while the barn burns. Now, Senator Boxer has refused to go along with a Parsky Commission choice for the first time, and this may signal that she is flexing her liberal instincts at the moment that the electoral power of the Republican Party is declining. Boxer rejected nominee Jim Rogan, a former GOP congressman who was instrumental in the House impeachment of President Clinton. A Wall Street Journal column calls Boxer’s position “partisan and petty,” but Boxer points out Rogan had a 100% voting record in Congress from the American Conservative Union, and voted against clean-air and clean-water measures. So, Boxer is just doing the job her constituents elected her to do.