New York Times Examines Impact Of Bush Appointments To Appeals Courts

Main Category: Abortion
Also Included In: Litigation / Medical Malpractice
Article Date: 30 Oct 2008 - 5:00 PDT

email to a friend   printer friendly   view / write opinions   rate article

Judicial appointments made by President Bush -- which account for more than a third of the federal judiciary expected to be serving when he leaves office in January -- have "transformed the nation's federal appeals courts, advancing a conservative legal revolution that began nearly three decades ago under President Ronald Reagan," the New York Times reports. Although it is not uncommon for two-term presidents to have a significant impact on appeals courts, Bush-appointed judges "were among the youngest ever nominated and are poised to have an unusually strong impact," according to the Times. Further, the appointments have come at a time when appeals courts "are increasingly getting the last word" in influential cases, including significant cases on abortion rights, because the Supreme Court in recent terms has taken up fewer cases than in the past, the Times reports.

According to the Times, Republican-appointed judges, who are mostly conservative, are expected to make up 62% of the bench when the next president takes office in January, compared with 50% of the bench when Bush was inaugurated. Conservative judges also control 10 of the 13 circuits; by contrast, judges appointed by Democrats have a "dwindling majority" on just one circuit. The Times reports that Bush's nominations now constitute "a lifetime-tenured force that will influence society for decades," including through laws concerning abortion rights.

South Dakota Case

For example, the Times reports that judges Bush appointed to the U.S. Court of Appeals for the Eighth Circuit played a large role in the court's 7-4 decision in June that South Dakota can begin enforcing a 2005 law that requires physicians to tell women seeking abortions that the procedure will "terminate the life of a whole, separate, unique, living human being." Of the seven conservative judges that made up the majority, Bush nominated six. According to the Times, the Eighth Circuit, which is based in St. Louis, has the appeals court's highest proportion of judges appointed by Republicans -- nine of its 11 judges. In the South Dakota case, the dissenters -- including two Democratic appointees, one Reagan appointee and one Bush appointee -- "portrayed the court's decision as a sharp change in direction," the Times reports. The judges in their dissent wrote that the majority had not only bypassed "important principles of constitutional law laid down by the Supreme Court" but also violated established standards for issuing preliminary injunctions. Prior to the June decision, a federal trial judge had blocked the state from enforcing the law and an appeals court panel had upheld the injunction.

Shift in Outcomes

A number of studies have shown that Republican-appointed judges, beginning with President Reagan, have ruled for conservative outcomes more frequently than their peers, the Times reports. For example, a 2006 study by Harvard Law School professor Cass Sunstein -- now an adviser to Democratic presidential nominee Sen. Barack Obama (Ill.) -- analyzed whether judges voted for a liberal or a conservative outcome in 20,000 cases. The study found that as a group, appellate judges appointed by Presidents Eisenhower, Nixon and Ford voted for a conservative outcome in 52% of their cases -- a record identical to that of judges appointed by President Clinton. However, appeals court judges appointed by Reagan and both Bushes took the conservative position in 62% of all cases and an even higher proportion of cases involving certain "ideologically charged areas," such as abortion rights.

Next President

In terms of how the next president will approach judicial appointments, the Times reports that Republican nominee Sen. John McCain (Ariz.) has said he would appoint judges similar to those appointments made by Bush, while Obama has indicated he will select judges with greater "empathy" for the disadvantaged. A Brookings Institution study found that an Obama presidency could reduce the Republican hold on the appeals courts and even create a Democratic majority by 2013. The study showed that if McCain wins, Republicans could have significant majorities in all 13 circuit courts. According to the Times, both conservative and liberal legal advocates "are trying to motivate voters to view the balance of the judiciary as a major issue in the election." For Bush, his "commitment to moving the courts rightward has been important not only to elite conservative thinkers, but also to the social conservatives who have been his base of support" in elections, according to the Times.

David McIntosh -- a co-founder and vice-chair of the Federalist Society, a conservative legal network -- said the nation's appeals courts are more in line with a conservative judicial ideology than at any other time in recent history. McIntosh said, "For somebody who has spent a lot of my life promoting those ideas, it's very encouraging to see," adding that conservative judges are moving the judiciary in a neutral direction to correct previous liberal politicization. Nan Aron of the Alliance for Justice said Bush has "packed the courts" with "extremists" who share an agenda that is hostile toward the rights of women, minorities and workers. "George W. Bush has made great strides in cementing the ultraconservative hold on the federal courts, which began with Ronald Reagan in the 1980s, when he set out to impose his agenda on the country through his court appointments," Aron said (Savage, New York Times, 10/29).

Reprinted with kind permission from http://www.nationalpartnership.org. You can view the entire Daily Women's Health Policy Report, search the archives, or sign up for email delivery here. The Daily Women's Health Policy Report is a free service of the National Partnership for Women & Families, published by The Advisory Board Company.

© 2008 The Advisory Board Company. All rights reserved.