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From the Forum “Undoing Bush”

One way to know that George Bush is going to do something is for him to say he doesn’t believe in it. The most famous instance of this might be his long-professed disdain for “nation building,” but he also has strong disbeliefs about the courts. For instance, when Bush said in his first 2000 debate with Al Gore, “I don’t believe in liberal, activist judges,” we could fairly assume that Bush would like nothing more than to install liberal, activist judges until the end of time. And indeed, seven years later we can see that he has gone at least half the distance. Under the guise of rolling back decades of judicial activism, he has instead installed a small army of jurists who think of the law in strikingly active terms.

This bit of hypocrisy—let us call it cryptoactivism—is irritating, but it also obscures a larger concern. Bush has long seen judges as intolerable rivals or, at best, political tools to be leveraged to his own ends. And he has acted on that belief too, managing to both geld the courts and harness their remaining power to his own political ends. It is a double bait and switch, then: under the guise of cryptoactivism, Bush has secretly worked to construct a personal political machine, and that machine appears to be neither democratic nor especially conservative.

Whenever this president speaks to voters about things jurisprudential, he lapses into cryptoactivist code. A search of the White House website shows 138 references to “activist judges,” and in just about every reference an argument against gay marriage is not more than a few words away. (“Marriage is the most fundamental institution of civilization,” Bush said, “and it should not be redefined by activist judges.”) “Activist judges” is a phrase for all seasons, though. A former aide to Karl Rove told The Atlantic that, depending on the audience, “activist judges” might mean anything from exorbitant jury awards to abortion rights to forced integration. With cryptoactive promises, then, Bush allowed his base to dream of an America without gay marriage, without abortion, and where black people would know their place.

But then comes the switch. Bush’s actual appointees to the federal bench don’t necessarily adhere to a socially conservative worldview. What they hew to is the president’s vision of executive authority. They are willing to sacrifice the conservative ideal of states’ rights if it means limiting environmental protection, and they are willing to abandon the conservative principle of limited government if it means shoring up the so-called unitary executive. They do have an agenda, but it is not the agenda of the Christian right. It is the agenda of George Bush.

The government has evolved methods to prevent this sort of personal machine building, but Bush has thus far managed to sidestep them. First he ditched the American Bar Association’s decades-long role in vetting judicial nominees, reportedly transferring that function to the Federalist Society, which was cofounded by a former speechwriter for Dan Quayle. Then he sought to limit the traditional veto power of Democratic senators from the nominee’s home state. And, perhaps most important to his cryptoactivist agenda, Bush has all along managed to load the national debate with empty language lifted directly from Karl Rove’s judicial lexicon: Americans seem confident not only that liberal judges are activists and conservative judges are strict constructionists but also that the terms “strict constructionism” and “judicial activism” actually mean something.

The Senate has confirmed 95 percent of Bush’s nominees, nearly three hundred new judges in all. It will be hard to gauge their impact, since it can take years to track jurisprudential change, but there are already signs of a shifting perspective. For instance, a Georgetown University Law Center study found that Bush’s two Supreme Court justices, John Roberts and Samuel Alito, agreed more than any other two justices at the Court, signaling the degree to which they work off the same playbook. A 2003 article in Judicature found that 9.6 percent of Bush’s district-court appointments hailed from law firms with a hundred or more lawyers—large firms, that is, which tend to represent large corporations. That proportion was 2 percent under Jimmy Carter and 6.6 percent under Bill Clinton. And a 2004 study by the Center for Investigative Reporting found that over a third of Bush’s nominees to appellate courts and the U.S. Court of Federal Claims during his first term—twenty-one of fifty-nine nominations since 2001—had previously worked as lawyers or lobbyists for the oil, gas, and energy industries.

These judges are getting results too. A 2006 study by People for the American Way found Bush-appointed judges spearheading efforts to limit the Civil Rights Act and the Voting Rights Act, restrict the application of the Family and Medical Leave Act, and limit access to the courts for wronged plaintiffs. A 2004 study by the Environmental Law Institute found that in National Environmental Policy Act lawsuits at the district-court level, pro-environment plaintiffs won 46 percent of the time before all judges, but they prevailed only 28 percent of the time before Republican appointees and 17 percent of the time before Bush appointees. And a 2006 study by Robert Carp at the University of Houston found that Bush-appointed judges were even less sympathetic to plaintiffs in civil-liberties cases than judges appointed by Ronald Reagan and Bush the elder.

The firing of eight—at least—United States attorneys in the middle of their terms (and in the middle of ongoing investigations) bears all the hallmarks of Bush’s tendency to view the courts as extensions of his political will. The next president can fire all of the remaining U.S. attorneys, of course, but there is little he can do about the current crop of judicial appointees. They will be making Bush-like decisions long after Bush himself is gone. Congress could try to impeach them, but the standard for impeachment is “treason, bribery, or other high crimes and misdemeanors,” which is a pretty high bar even for a Bush appointee.

The best the next president can do, then, will be to dramatically reform the judicial-confirmation process. Nominees should not be able to hide their views behind claims that an issue may come before them when they sit on the bench. They should have to answer questions about their jurisprudential records, and there must be consequences if they do not. Senators who use confirmation hearings as days-long infomercials should instead use their time for rigorous constitutional inquiry. Finally, Americans need to reclaim the language of the rule of law. We need to recognize that we have all been speaking Karl Rove’s language; that “activist judges” and “strict construction” are political, not legal, code words.

is a senior editor at <em>Slate.</em>

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June 2007

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