JURIST Guest Columnist Carl Tobias of the University of Richmond School of Law says that while purporting to have improved the judicial selection process, President Bush has in fact perpetuated and even exacerbated the counterproductive dynamics of allegations and countercharges, partisan division and paybacks…

Today, President George W. Bush travels to Ohio, a critical battleground state, to deliver an address that evaluates his administration’s impact on the federal judiciary, especially the United States Supreme Court. President Bush’s speech will serve as a trenchant reminder of the difficulties created by partisan judicial selection and of how Senator John McCain might approach selection, if elected.

Today’s conference on the presidency and the courts at which Mr. Bush will speak is sponsored by the Cincinnati Lawyers Chapter of the Federalist Society. The society is a national organization of conservatives and libertarians, who believe that judges should “say what the law is, not what it should be.” President Bush has appointed numerous Federalist Society members to the federal bench, while a number of its members have exercised considerable influence in the process for naming judges over the Bush Administration’s eight years.

The White House has not made public what Mr. Bush will say at the Ohio conference. However, the chief executive will probably tout his success in appointing to the Supreme Court Chief Justice John Roberts and Associate Justice Samuel Alito, whom many observers consider conservative. The president may concomitantly trumpet analogous success in confirming like-minded judges to the U.S. Courts of Appeals. The twelve regional circuits are essentially the courts of last resort for 99 percent of appeals filed in their geographic areas because the Supreme Court hears so few cases. Judges whom Republican presidents appointed constitute majorities on all of these courts except the Second and Ninth Circuits.

President Bush can justifiably claim a measure of credit for securing these appointments and for the judges’ effects on decisionmaking in these courts. Most observers believe that Chief Justice Roberts and Justice Alito have made the Supreme Court more conservative and that the White House’s appellate court appointees have similarly affected the circuits on which they serve.

However, Mr. Bush’s approach to judicial selection has exacted costs. For example, the White House has often failed to select consensus nominees or to consult with senators, even Republicans, from states in which the vacancies arise before officially making nominations. Mr. Bush also nominated on multiple occasions individuals whom Democratic and Republican Senate members clearly opposed.

Illustrative are the Fourth Circuit, which presently experiences openings in four of its fifteen judgeships and the Sixth Circuit that encountered vacancies in fully half of its judicial positions at one juncture in the Bush presidency. Poor White House judgment and intransigence have ironically left the Fourth Circuit, which was certainly the most reliably conservative appellate tribunal when Bush assumed office, more liberal today. These phenomena have meant that Democratic and Republican accusations and recriminations, divisive partisanship and paybacks have characterized judicial selection.

There have been a few, notable exceptions to these troubling selection dynamics, especially since 2007 when Democrats assumed a Senate majority, which enabled the party to control the confirmation process. For instance, the White House and Michigan’s senators reached an accord which led to the expeditious confirmation of one Sixth Circuit Judge whom Bush favored and another whom President Bill Clinton had nominated but the Republican – dominated Senate never considered. The Senate also promptly confirmed a Fourth Circuit Judge whom Virginia’s Republican and Democratic senators recommended to Bush. In September, the Senate correspondingly approved ten consensus nominees for the federal district courts, which is rare so late in a presidential election year.

Republican presidential candidate Senator John McCain has pledged to appoint nominees who resemble those Mr. Bush chose. In a May address at Wake Forest University, McCain promised to appoint strict constructionists who would not legislate from the bench. As a senator, McCain has exhibited willingness to depart from the bitter partisanship that has plagued selection. For example, McCain was a member of the “Gang of 14,” which prevented detonation of the “nuclear option” that would have proscribed filibustering of judicial nominees.

When President Bush speaks today in glowing terms about his administration’s impacts on the federal judiciary, those who read or hear his speech might ask whether the Bush Administration improved the judicial selection process. Listeners may want to remember that Mr. Bush has perpetuated, and even exacerbated, the counterproductive dynamics of allegations and countercharges, partisan division and paybacks. Whether Senator McCain will continue these deleterious approaches is a question that all voters should ask.

Carl Tobias is the Williams Professor of Law at the University of Richmond
——–