Cases and Controversies: George W. Bush's Appeals Court Nominations

By Christopher Miles
2010, Vol. 2 No. 06 | pg. 1/6 |

In his eight years as President, appointed two Supreme Court justices, 61 Appeals Court judges, and 261 Federal District Court judges. This article examines his appeals court nominations. Specifically it looks at eleven of the most controversial nominations that were held up in the Senate and their eventual outcomes.

A president’s judicial appointments can be one of that president’s longest lasting legacies. The people President Bush named to the judiciary will be making decisions and affecting policy long after Bush leaves office.

In 2005, Sonia Sotomayor said the “Court of Appeals is where policy is made.”1 Though this was seen as controversial by those that opposed her appointment, she was right. Courts today, especially the Supreme Court and appeals courts, make policy that has just as much of an impact on Americans’ lives as do the laws that Congress passes. President Bush recognized this fact and took his power to appoint judges very seriously.

White House Process

Though it is hard to know exactly how the nomination process worked in the White House because those involved in the process have remained relatively silent, we do know some details. In the Bush administration, a group called the Judicial Selection Committee (JSC) met twice weekly or as needed to discuss judicial appointments. The JSC consisted of Assistant Attorney General Viet Dinh, the Office of Legal Policy, White House Counsel Alberto Gonzales, and Associate White House Counsel Brett Kavanaugh. A different group composed of higher level administration officials has also been mentioned as meeting to discuss judicial appointments. This group consisted of the White House Counsel’s Office, White House Chief of Staff, Attorney General, and presidential advisor Karl Rove.2

Regardless of which group was more involved in Bush’s judicial appointments it is clear that President Bush himself was very involved in the process:

…direct presidential approval of each nominee was required at two points in the process: (1) before any detailed vetting took place, and (2) after extensive vetting but before the formal nomination was made.3

Changes from Previous Administrations

President Bush also made a number of changes to the judicial nominating process when he took office. One of the most high profile was the decision to exclude the American Bar Association (ABA) from advanced notice of judicial nominees. In previous administrations, the ABA had been told that someone was being nominated before that information was given to the general public. This gave the ABA the chance to do their own investigation of the nominee, which could then be used during Senate confirmation hearings.

Over the years, however, the ABA came to be seen as a more liberal institution that was harder on more conservative nominees. The ABA especially angered conservatives when, despite giving him their highest rating, “well qualified,” it came out that four of those reviewing Supreme Court nominee Robert Bork voted to give him a “not qualified” rating and one voted to give him a neutral “not opposed” rating.4 After it came out that a minority of the ABA committee had voted not to endorse Judge Bork, Senator Orrin Hatch said, “That's one of the problems we have had with the A.B.A. in recent years, playing with the ratings.”5 Bork’s nomination eventually failed in the Senate, which only increased the anger many conservatives felt toward the ABA.

Despite being one of the more controversial changes made, it is not clear how much of an impact excluding the ABA from early notice had on Bush’s nominees. As soon as the Bush administration announced the ABA would no longer be getting special treatment Democrats on the Senate Judiciary Committee announced they would not hold hearings on Bush judicial nominees until the ABA had been given a chance to do their own investigation.6

This may not necessarily be a change from previous administrations but the Bush administration drew a clear line between district court and appeals court judges. While they might be willing to settle for district court nominees they were not fully in favor of, appeals court judges received much more scrutiny. There are a number of reasons for this. First, district court judges essentially take to the law or case precedent and apply it whatever the facts of the case they are deciding are. Appeals courts deal with the much more complicated questions where the law or precedents are not that clear. Second, the appeals court is a good stepping stone to the Supreme Court. All of the current justices on the Supreme Court have served on appeals courts and it is out of the ordinary for a President to nominate someone to the Supreme Court who has not served on an appeals court. Third, there are a lot fewer openings at the appeals court level than at the district court level. President Bush appointed approximately four district court judges for every appeals court appointment. Naming a judge to an appeals court for a reason other than wanting them on the court could be justified (and it was), but that would mean one seat that could not be filled with a conservative judge.

Another change occurred in the way the Senate handled the President’s nominees. When the President nominates someone for a seat, the senators from whatever seat that state is in are given blue slips. If the senator approved of the nominee, he could indicate that support on the slip and return it to the committee. If the senator did not approve of the nominee, he could withhold the slip. Previously, if either senator did not return their blue slip, the committee would normally refuse to hold hearings on the nominee and their nomination would fail.

When Bush took office, Senate Judiciary Committee Chairman Orrin Hatch announced that he would only allow a nomination to be held up if both home state senators withheld their blue slip. Later, he decided to consider each nominee on a “case-by-case basis”7 even if both home state senators withheld their blue slip.8 This was one of the biggest changes made to the confirmation process and will be important later during the discussion of Bush’s Michigan nominees.

Overview of the Controversy

When President Bush came into office, the Senate was evenly split with 50 Republicans and 50 Democrats. Vice President Cheney, as Senate President, cast the tie breaker vote. This gave Republicans control of Senate, including control of the Senate Judiciary Committee. Under this, Republicans could give confirmation hearings to all of Bush’s nominees and send them to the Senate floor even if only on a party line vote. This meant the only way for Democrats to hold up a nominee would be to filibuster that nominee. Republicans had enough votes to win the floor vote but not a big enough majority to overcome a filibuster.

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