George W. Bush's Dashed Hopes
Wrapping up judicial confirmations in his first term
Over the past several months, I’ve written more than a dozen Confirmation Tales posts about George W. Bush’s judicial nominations in his first term. I’m going to wrap that first term up here before moving into the extraordinary events of 2005.
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Bush and his outstanding team of White House lawyers had high hopes when he announced his first slate of eleven appellate nominees in early May 2001. They would reasonably have expected that the Senate would confirm all eleven nominations by the end of the year.
Their hopes were dashed a mere 15 days later when Senator Jim Jeffords of Vermont announced that he was leaving the Republican party. Democrats would take control of the Senate, and they could, if they wished, simply refuse to give a hearing to any nominee they wanted to stop.
As a peace offering to Democrats, Bush included in his initial slate of eleven nominees two liberal judges, Roger Gregory and Barrington Parker Jr., whom Bill Clinton had appointed to the bench. (Clinton nominated Gregory to the Fourth Circuit in 2000 and recess-appointed him at the end of that year. He appointed Parker as a federal district judge in 1994.)
Senate Democrats expedited the confirmation of Gregory and Parker. But the Senate confirmed only one other nominee of the group of eleven in 2001 (Edith Clement to the Fifth Circuit in November) and only two more (Dennis Shedd to the Fourth Circuit and Michael McConnell to the Tenth Circuit) at the very end of 2002. All but one of the other nominees, including John Roberts (D.C. Circuit), didn’t even receive a hearing.
The White House’s hopes revived after Republicans won back control of the Senate in the 2002 elections. Roberts, Jeff Sutton (Sixth Circuit), and Deborah Cook (also Sixth Circuit) were confirmed in the spring of 2003. But Democrats initiated their unprecedented campaign of filibusters against D.C. Circuit nominee Miguel Estrada in March 2003. Estrada abandoned his nomination six months later. Democrats filibustered nine other appellate nominees, including Priscilla Richman Owen (Fifth Circuit) from the May 2001 slate. And the remaining member of that slate, Terry Boyle (Fourth Circuit), languished behind.
To sum it up another way, the White House could have expected in May 2001 that the nine judicial conservatives that Bush announced would by the end of 2004 have collectively accumulated some thirty or so total years of judicial service. Instead, they had roughly thirteen.
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Bush’s total number of appellate appointments in his first term—35 (including Gregory and Parker)—actually slightly exceeded the first-term totals (30 each) of the Democratic presidents who preceded and followed him. In part that’s because Clinton and Obama also had two Supreme Court nominations that consumed the time and attention of the Senate Judiciary Committee.
The nominations that Democrats allowed to be confirmed were disproportionately of candidates they perceived to be moderate or unthreatening. A remarkable ten of the 35 were concentrated in two courts of appeals (the Eighth Circuit and the Tenth Circuit) in what liberals disregarded as flyover country. Only seven of Bush’s 35 appointments flipped a seat that had been held by a judge appointed by a Democratic president.
One other measure of Bush’s lack of success: For the 31 appellate vacancies that existed in May 2001, Bush managed to get only 19 nominees confirmed during the remainder of his first term.
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The judicial-confirmation wars during Bush’s first term did not spread to district judges. The liberal Democrats who orchestrated the obstruction of Bush’s judicial nominees focused on appellate nominees for several reasons.
First, Supreme Court candidates are usually picked from the ranks of federal appellate judges. (Twelve of the past thirteen appointed justices—all but Elena Kagan—were elevated from appellate seats.) Democrats wanted to keep potential Supreme Court candidates like Miguel Estrada from getting to that launching pad.
Second, in the days before nationwide injunctions by federal district judges became commonplace, federal appellate judges were viewed as much more influential in shaping the law. They addressed bigger issues and were less likely to have their decisions reviewed. A losing party in the district court had a right to appeal. But it was anyone’s guess whether the Supreme Court would grant review of an adventuresome appellate ruling.
Third, senators on both sides of the aisle regarded district-court nominations as the special privilege of home-state senators. The Judiciary Committee’s blue-slip policy, which enabled home-state senators to express their approval or disapproval of judicial nominees, applied with special force to district judges. Senators took a much greater interest in who the district judges in their states were than in who the appellate judges were. The work of a federal district judge derives heavily from the state in which the judge sits: it can include constitutional challenges to the state’s laws as well as prominent local criminal matters, such as, say, the corruption trial of a United States senator. By contrast, the work of a federal appellate judge is spread across the states of the judge’s circuit.
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The Bush White House was prepared for the possibility of a Supreme Court vacancy from the very outset. No vacancy arose during Bush’s first term. But two vacancies would very suddenly present themselves in the first year of his second term.