Ambition and Division: Legacies of the George W. Bush Presidency

11. Low Risk and Big Ambition: Bush and the Judiciary

190 s urprisingly, perhaps, for a president first elected with little excess political capital, George W. Bush made his appointments to the federal judiciary a high priority and spared no political expense to secure his patently conservative nominees’ confirmation. His first-term clashes with the Senate, and the controversy over the Senate Republicans’ spring 2005 “nuclear option” as retaliation for Democratic filibuster of certain circuit court nominees, heightened what was already an extremely politicized process. By the time of Bush’s second-term confirmation face-offs to appoint two new members of the Supreme Court, his commitment to high-stakes judicial selection politics was evident. He seemed, by all accounts , to be the high-risk presidential operator scholars had predicted, one “seek[ing] to entrench a conservative regime among a public beset by even partisan divisions and without a stable Washington governing coalition ” (Schier 2004, 9) Nomination and confirmation of federal judges and, with presidential luck, Supreme Court justices, pits presidents desiring to leave a policy legacy beyond their administration against institutional and partisan forces. Within the matrix of nominee qualifications, presidential ideological prefLoW risk ฀nD biG ฀mbition bush and the Judiciary nancy maveety 11 191 low risk and big aMbition erence, and contextual political constraints, chief executives struggle to select a suitable, if not desirable, candidate who is also confirmable. Thus enters the element of risk: how far should a president’s reach threaten to exceed his or her grasp? As this volume maintains, George W. Bush has been what presidential scholar Stephen Skowronek calls an “orthodox innovator ” (Schier 2004, 4). His judicial selections sought to articulate the commitments of the previous conservative regime—what new institutionalist scholars call the “New Right Constitutional Regime” (Clayton 2005, 8)—and “galvanize political action with promises to continue the good work of the past, and demonstrate the vitality of the established order to changing times” (Skowronek 1997, 41). He affirmed his commitment to appointing jurists like the conservative-loyalists Antonin Scalia and Clarence Thomas and his desire to continue and entrench GOP control of the federal courts. His avowed belief—stated on October 1, 2000, in the first presidential debate with Democratic opponent Al Gore—was in interpreting the Constitution strictly and not legislating from the bench, and his judicial candidates would believe the same. So, were his judicial candidates, in the last analysis, “risky”? Or does Bush deserve the distinction —distinctly undistinguished-sounding but perhaps begrudgingly admirable —of being known as “low risk and big ambition”? This chapter contends that although Bush may have been an orthodoxinnovator president, he was not really much of a risk taker in his judicial appointments. His most riskily aggressive behaviors backfired badly, and he backed down from asserting other bold moves in the face of likely and sustained resistance. Still, to say that he shied from risk is not to say that he was not successful in judicial staffing. Two reliably conservative and disarmingly palatable Supreme Court selections, and a cohort of likeminded , rightward lower federal court appointees, reveal that for the most part, George W. Bush’s big ambitions for the judiciary at the time of his election in 2000 were realized—and through little real risk. Yet his ambitions , while fundamentally realized, nevertheless furthered divisions on the High Court and gaps in its development of the constitutional law of executive power. This chapter addresses how these seemingly counterintuitive propositions can coexist. The Politics of Judicial Appointment As Supreme Court confirmations scholar Mark Silverstein comments in the second edition of his volume Judicious Choices, “Both political and legal forces shape the selection of nominees to the [federal courts] and 192 nancy Maveety the process of their confirmation” (Silverstein 2007, 8). While nominees’ legal experience and qualifications have always been central to their appointment , other factors regularly intervene. Lee Epstein and Jeffrey Segal (2005) see the appointment process in terms of two stages: presidential selection of candidates for the federal judiciary and the confirmation of those candidates by the Senate. At each stage, political actors make calculations about candidates’ acceptability, based on nominees’ legal, ideological , and demographic characteristics, about the political climate of executive-legislative relations, and about the balance of power in the judiciary and, especially, on the Supreme Court. In the presidential calculation of whom to nominate, no considerations are more powerful than political ones. Presidents desire to leave a policy legacy in the federal courts—of their political party, certainly...