Wrapping Up George W. Bush's Consequential Second Term
How the politics of judicial confirmations was transformed
There’s room to doubt that I prevented George W. Bush’s defeat in his bid for re-election in 2004. But there can be no doubt that his second presidential term was momentous for judicial nominations.
That’s true of the Supreme Court and appellate appointments Bush made, as well as of those he failed to make. It’s especially true of how the politics of judicial-confirmation battles was transformed.
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Let’s start with the Supreme Court.
As I’ve presented in detail, George W. Bush succeeded in appointing John Roberts and Samuel Alito to the two Supreme Court seats that became available in 2005. While Roberts’s replacement of William Rehnquist as chief justice did not significantly alter the ideological makeup of the Court, Alito’s replacement of Sandra Day O’Connor shifted that seat markedly to the right. But Anthony Kennedy would remain the presumptive justice in the middle until he retired in 2018, so Alito’s replacement of O’Connor did not prevent the conservative legal movement from suffering some significant losses in the interim.
No episode was more important in Bush’s second term than his failed nomination of his White House counsel (and former personal lawyer) Harriet Miers to the Supreme Court. The successful revolt of the conservative legal movement against that nomination not only led to Alito’s nomination. It also delivered the larger lessons that conservatives were no longer going to accept a Republican president’s “trust me” assurance on a Supreme Court nominee and that a Republican president would therefore be smart to look to the conservative legal movement for guidance in selecting a nominee.
Bush’s second term also set up Donald Trump’s first two Supreme Court selections a decade later. Bush appointed Neil Gorsuch and Brett Kavanaugh—as well as short-listers Ray Kethledge, Thomas Hardiman, and William Pryor (on top of his recess appointment in 2003)—to their appellate seats and thus gave them the opportunity to develop into outstanding candidates for elevation.
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Bush appointed only 26 appellate judges in his second term, compared to 35 in his first term. The number is so low largely because Democrats held control of the Senate in 2007 and 2008: the Senate confirmed only 10 appellate judges in those two years, and 10 of Bush’s nominations died from inaction.
As I’ve spelled out, Bush’s failures on the D.C. Circuit and the Fourth Circuit were especially significant.
But Senate Republicans did manage to neutralize the filibuster weapon that Democrats had begun wielding against Bush’s appellate nominees in 2003. Although they did not succeed in abolishing the use of the filibuster against judicial nominees, their effort to do so yielded the Gang of 14 Agreement, which probably turned out to be much more beneficial than filibuster abolition would have been, including in smoothing Samuel Alito’s path to his Supreme Court confirmation.
As we shall see, the survival of the filibuster left it as a tool that Senate Republicans could use against Barack Obama’s nominees. When Senate Democrats acted in November 2013 to deprive Republican senators of the very weapon that they themselves had first deployed against Bush’s nominees, they clearly marked themselves as the aggressors in the confirmation wars. They also made it much easier for the Republican-controlled Senate to confirm Donald Trump’s three Supreme Court nominees and to create a conservative majority on the Court.
In case anyone was unclear on the elementary point, Senate Democrats’ refusal to act on many of Bush’s appellate nominees in his final two years—including seven who were nominated before the end of 2007—starkly reminded senators that a Senate majority could obstruct and defeat a nomination by simple inaction. That lesson would be repeated more prominently in 2016, when Obama nominated Merrick Garland to fill the vacancy that resulted from Antonin Scalia’s death.