Brennan Center for Justice

Last
night's State of the Union address, Bush's last, was about legacy-building. But
the President spent only a moment of his hour-long speech on a subject that
could be his most enduring legacy of all, one that will have an impact long
after troops are out of Iraq
and the housing market has recovered — the makeup of the judicial branch.

Many of
his nominees, Bush complained in the speech, are being "unfairly delayed." He
does have some trouble; he nominates divisive candidates, and the Senate
Democrats resist.  Last year, for example, Bush dropped
the nomination of three judges when it was apparent that they would never
be confirmed. And of course there were the events of 2004, when the country finally
learned what
the word "filibuster" meant. But these "delays" are relative — a
glance through the records of
Bush's judicial nominations shows that many votes to confirm judges are
unanimous. In a statement last November, Senate Judiciary Committee Chairman
Senator Patrick Leahy reported that the Senate had confirmed more judges in
2007 than in the previous three years, in which Republicans had a majority.

The President
plays a critical role in creating the entire judicial branch, not just the
Supreme Court. Bush has appointed two Supreme Court justices, but he has also successfully confirmed 294
judges to the federal district and circuit courts. By the end of their
terms, Clinton and Reagan had successfully confirmed 377
and 382 federal judges, respectively. By the end of his term, Bush may not
reach the same count, but his choices of hundreds of judges will still have a
lasting impact on the country. These district and circuit court judges serve
lifetime appointments. So it's little wonder that, as
Bob Dole said during his presidential campaign, "the federal judges a
president chooses may be his most profound legacy."

It is a
legacy that we have largely been ignoring when it comes to electing our next
president. From watching the Democratic and Republican debates, for example,
one would think that the only questions facing our courts these days are Roe v. Wade and the Second Amendment. In
the Democratic
debate in Las Vegas last November, a voter asked that candidates "what
qualities" a judicial nominee must possess. Wolf Blitzer spun the question
around, making the candidates give "yes or no" answers to whether or not they
would appoint judges who supported abortion.

It is
essential that the media ask the candidates about their judicial philosophies,
and allow them to answer in full sentences. And it is essential that we the
voters stop to listen, because the matter of judicial candidates provides
important clues about how a candidate might govern. In 2000, Bush was running
on a platform of "compassionate conservatism," but when asked said he would
appoint justices in the mold of Scalia and Thomas. His answer provided a guide,
not just to the kind of judiciary we could expect from a Bush presidency, but
to the tenor of his presidency as a whole.

We are
often reminded that the next president could very well appoint one or two
Supreme Court justices, but no one mentions that, if the next presidency is
anything like previous ones, the person who is elected could have the
opportunity to nominate candidates for perhaps 40% of this country's 857
circuit and district judgeships.

In turn,
these judges have immense influence. While the Supreme Court typically hears
about 100 cases each year, the circuit and district courts hear tens of
thousands of cases across the country. With few cases ultimately reaching the
Supreme Court, judges on appellate courts often have the last word on a slew of
important issues: employment law, the environment, voting rights, national
security policy, civil rights, and yes, possibly reproductive rights and gun
control.

Knowing a
candidate's judicial philosophy might not seem as pressing as knowing his or
her opinions on the war, or the economy, or health care. Yet it's important to
keep in mind that we will be living with the next president's judicial
philosophy for decades. The significance of Bush's impact on the judiciary was
clearly not lost on the four Supreme Court justices who attended the speech. This
may have been Bush's last State of the Union address but, as the justices know,
we will be hearing his voice from the federal bench for years to come.