The Bush II Bench: Already Delivering What the Right Wants

In Courts & The Law: The Bush Bench, Congressional Quarterly Weekly’s Kenneth Jost reports that the Senate’s confirmation of 39 Bush appointees to federal appeals courts is “helping to create or solidify Republican majorities on all but three of the 12 regional courts … tilting the scales significantly in a conservative direction.” Jost cites a nonpartisan academic study of 75,000 opinions written since 1933. The study “just call[s] it the way the data calls it” and validates something we have been saying all along: the Bush II judges are not only not moderate, but also less protective of civil rights, civil liberties, and worker and consumer protections than Republican-appointed judges of yore. “There has been a quiet, silent revolution going on,” study author Robert Carp told Jost. “If you’re a conservative, you’re going to say, ‘Thank God.’ If you’re a liberal, you’re going to put your hands over your head and say it’s a nightmare.”

One of the noteworthy things about this trend is that, as Jost suggests, it undermines right-wing talking points -- talking points stubbornly pushed by the conservative Committee for Justice's Sean Rushton in Jost's piece -- about how liberals favor "activist" judges who disrespect legislative decisions while conservatives favor "restrained" ones who honor them:

Too often, Bush’s judges display a political slant in deciding when to exercise judicial restraint and when not. [Former Justice Department lawyer Jay] Bybee, for example, voted in dissent in 2004 to strike down a “living wage” ordinance enacted by the city of Berkeley, Calif. Two Bush appointees on the 5th Circuit voted, also in dissent, to limit the scope of the Endangered Species Act. With more Bush judges, dissenting opinions like those could become majority rulings, making federal courts a graveyard for legislative initiatives as they were in the early 20th century.

Jost could have mentioned a host of other opinions by Bush II judges, as well as those by other judges favored by movement conservatives, that have either weakened or undone legislative efforts to protect workers, consumers and public health and safety. For more on the rise of this decidedly conservative brand of judicial activism, check out our recent Full Court Press post on recent comments by Republican Senate Judiciary Committee Chair Arlen Specter.