Mixed Results for Bush in Battles Over Judges -- putting a conservative stamp on the courts

WASHINGTON - Soon after President Bush took office, two events set in motion what has become an extraordinary battle between the White House and Senate Democrats over the appointment of federal judges.

First, the new president and his aides turned to the Federalist Society, a conservative lawyers' group, to help select candidates. Of Mr. Bush's first batch of nominees, 8 of 11 were proposed by the society. There could have been no clearer signal that Mr. Bush intended to follow the pattern set by his father and President Ronald Reagan of shifting the courts rightward and reaping the political benefit of pleasing social conservatives.

Then, at a weekend retreat in April 2001, Democratic senators adopted an aggressive new strategy in dealing with judicial candidates. Under Mr. Bush's Republican predecessors, the Democrats believed they could block only candidates with egregious faults. But that weekend, two prominent law professors and a women's rights lobbyist urged the senators to oppose even nominees with strong credentials and no embarrassing flaws, simply because the White House was trying to push the courts in a conservative direction.

Now, after more than three years of battles over judicial appointments, Mr. Bush's ambitions for the courts are clear, but his record is mixed. He has succeeded in placing staunch conservatives on the bench in many cases but has been foiled in others by Senate Democrats like Charles E. Schumer of New York who charge him with trying to "create the most ideological bench in history."

The conflict between the White House and the Democrats has been particularly sharp, in part because Democrats reasoned that Mr. Bush could not claim any mandate to remake the courts, given his contested victory over Al Gore. With the nation now preparing to elect a president who will almost certainly have an opportunity to name at least one Supreme Court justice, Democrats and Republicans remain deeply entrenched in their positions over who belongs on the bench.

Mr. Bush has said that the Democrats have been "playing shameful politics" with judicial confirmations and that his choices deserve a straight up-or-down vote, which the nominees would presumably win. Of the 45 or so appeals courts candidates who have gone to the Senate floor, the Democrats have blocked 10, going so far as to use a filibuster, or threat of an extended debate, to stop consideration on all 10.The Republicans hold a slim majority with 51 votes, but overcoming a filibuster requires 60 votes.

Democrats argued that they were justified in going to such extraordinary lengths, in part because the Republicans had not given many of President Bill Clinton's judicial choices a hearing, effectively keeping seats vacant until a Republican was in the White House. And at their 2001 retreat, the Democrats were persuaded by Prof. Laurence H. Tribe of Harvard; Prof. Cass R. Sunstein of the University of Chicago; and Marcia D. Greenberger, the co-president of the National Women's Law Center, that the federal courts were at a critical juncture.

Underlying all of the political maneuvering is a rich debate over whether and how much candidates' philosophies and records influence what kind of judge they will be.

Republicans have largely stuck to a script, saying it does not matter who is put on the bench as long as they are solid lawyers.

On a recent campaign trip, President Bush suggested he paid little attention to the ideology of his judicial choices. "I don't have a litmus test," he said. "When the nominees come before people in my administration, we don't say, 'What is your specific position?' on that issue or another issue. What we say to the person is, 'What is your judicial temperament? Will you be willing to faithfully interpret the law?' "

But his critics note that Mr. Bush's judge-selectors do not have to ask about issues like abortions. Many of the judicial candidates already have strong and unambiguous records opposing legalized abortion. For example, some of his appeals court nominees have called abortion "a sin" and "an abomination" and the Supreme Court's ruling legalizing the procedure immoral and "the Court's most awful ruling."

There is no nominee the administration can point to who has been outspoken in favor of the right to abortion.

Asked in the final presidential debate last week about judicial appointees, Mr. Bush repeated that he has no "litmus test" on issues like abortion. He also singled out as a mistake the Dred Scott decision from 1857, which ruled that blacks were less than full citizens. Many took his reference to be a signal of support to opponents of abortion who contend that Roe v. Wade, the 1973 ruling that said abortion was a constitutional right, holds parallels to the Dred Scott ruling.

Senator John Kerry said flatly that he would not appoint judges who would overturn Roe.

The impact of judicial selection can be quite clear. The United States Court of Appeals for the Fourth Circuit, based in Richmond, Va., is widely regarded as the nation's most conservative appeals court. Many of its judges were appointed by President Reagan and the first President Bush. The current administration has tried to have as many terrorism-related cases as possible brought in that circuit, precisely because its conservative members tend to favor presidential authority.

Prof. Sheldon Goldman of the University of Massachusetts, a leading authority on judicial selection, said of the current President Bush in a May 2003 article in the magazine Judicature, "Even more so than his father's, his administration is clearly coordinated and is expending its resources to place on the bench those who share his philosophy."

The article, written with four other academics, also noted that Mr. Bush had the best diversity record of any Republican in history. Professor Goldman said in an interview that through July 2004, roughly a third of Mr. Bush's district and appeals court nominees had been women or minorities or both. Because most of Mr. Bush's nominees come before the Senate Judiciary Committee with clear conservative records, the confirmation hearings have produced a ritual in which candidates insist under questioning from friendly Republican senators that they would never allow personal views to influence their decisions. They would, they say, "simply follow the law."

Democrats say they find that meaningless and argue that these candidates were chosen for the bench only because of their firmly expressed conservative views.

Judge D. Brooks Smith, nominated to a seat on the appeals court based in Philadelphia, is an example. He came to the attention of Bush advisers after he gave a speech to the Federalist Society on a favorite conservative theme: That Congress's powers were far more limited than its members believed.

At his May 2002 confirmation hearing, Judge Smith got around that awkward matter by simply renouncing his speech, suggesting his views were more complicated. He also explained that even though he promised the Senate in 1988, when he was confirmed as a district judge, that he would resign from a men-only club, he retained his membership for 11 more years because he thought that was the most effective way to change what he characterized as its unfortunate policies. He was narrowly confirmed for the appeals court.

Speculation about what would happen in a second Bush term produces little dispute. "I have no reason to believe that the president would alter his approach in any way," said C. Boyden Gray, a Republican lawyer and former White House counsel.

One of the underlying factors to the battles between Mr. Bush and the Senate Democrats was the widespread belief that they were dress rehearsals for a larger battle they would soon fight over at least one, and probably a few, Supreme Court nominees.

The nine justices have been together for 10 years without a change in the lineup, something that has not occurred since the early 19th century. Eight are 65 or older, with two in their 80's.

White House aides were so confident that Mr. Bush would have a chance to nominate at least one justice in his first term that they compiled a list of candidates.

But none of the justices retired, and no one expects any to do so before the Nov. 2 election.

That list of possible nominees is still operative, senior Republican advisers say, though some of the political calculations may have changed because of the Democrats' willingness to wage a confirmation fight.

At the top of the list is Alberto R. Gonzales, the White House counsel and a Bush confidante. Mr. Gonzales, who still likes to be called "Judge Gonzales" for his two years on the Texas Supreme Court, would be the first Hispanic member of the Supreme Court.

Some conservatives have been wary of Mr. Gonzales, unsure if he is sufficiently faithful to their views. Deeply disappointed by the performance of Justice David H. Souter, who was appointed to the court by Mr. Bush's father, they have adopted "No more Souters" as a rallying cry, meaning no support for anyone whose views are uncertain. Justice Souter has not turned out to be as conservative on the court as many of his political sponsors had promised before his nomination.

Officials believe that Mr. Gonzales's personal story in becoming the first Hispanic justice would serve him well in any public debate. But a Gonzales nomination could be hampered by questions about his role in overseeing the drafting of legal memorandums that appeared to allow American forces to mistreat prisoners in Iraq and elsewhere in certain circumstances.

The other leading candidate remains Judge J. Harvie Wilkinson III, who sits on the federal appeals court in Richmond. He is likely to be palatable to many Democrats and was a protégé of the late Justice Lewis F. Powell, who was widely admired.

Judge Wilkinson turned 60 in September, and Republicans, more than Democrats, have shown a preference for younger candidates, who will have longer judicial careers ahead of them and thus greater influence. That increases the prospects of Judge J. Michael Luttig, 50, who sits on the same court as Judge Wilkinson.

Other possible candidates are Judge Edith H. Jones, a federal appeals court judge, and Larry D. Thompson, a former deputy attorney general.

Is it as important as it was to make sure George Sr. could pick someone like David Souter? How about Reagan with Kennedy or O'Connor? Or Gerald Ford to select John Paul Stevens?

Just because the President has an "R" next to his name doesn't necessarily mean a strict constructionist will be nominated to the high court.

Just because the President has an "R" next to his name doesn't necessarily mean a strict constructionist will be nominated to the high court.

True, but what is your alternative? For although many Republican Supreme Court picks -- Blackmun, Souter, Stevens -- turn out to be liberal or far-left, when was the last time a Democratic President's pick ended up being disappointingly "Republican" in his judgments once sworn in? (Clinton's picks Breyer and particularly Ginsburg have been reliable liberals.)

"Some conservatives have been wary of Mr. Gonzales, unsure if he is sufficiently faithful to their views. Deeply disappointed by the performance of Justice David H. Souter, who was appointed to the court by Mr. Bush's father, they have adopted "No more Souters" as a rallying cry, meaning no support for anyone whose views are uncertain. Justice Souter has not turned out to be as conservative on the court as many of his political sponsors had promised before his nomination.

Officials believe that Mr. Gonzales's personal story in becoming the first Hispanic justice would serve him well in any public debate. But a Gonzales nomination could be hampered by questions about his role in overseeing the drafting of legal memorandums that appeared to allow American forces to mistreat prisoners in Iraq and elsewhere in certain circumstances.

The other leading candidate remains Judge J. Harvie Wilkinson III, who sits on the federal appeals court in Richmond. He is likely to be palatable to many Democrats and was a protégé of the late Justice Lewis F. Powell, who was widely admired.

Judge Wilkinson turned 60 in September, and Republicans, more than Democrats, have shown a preference for younger candidates, who will have longer judicial careers ahead of them and thus greater influence."

Let me get this straight - of Bush's top two Supreme Court candidates one is a possible Souter and is mostly in contention due to "hispandering" and another is buddy buddy with the Rat party along with being 60 years old?
Hello? Whatever happened to Bush's interest in Scalia's and Thomas'?

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