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.