Tuesday 28 October 2008
by: Charlie Savage, The New York Times
President George W. Bush with members of the 4th Circuit Court of Appeals. (Photo: Steve Helber / AP)
Washington - After a group of doctors challenged a South Dakota law forcing them to inform women that abortions "terminate the life of a whole, separate, unique living human being" - using exactly that language - President Bush's appointees to the federal appeals courts took control.
A federal trial judge, stating that whether a fetus is human life is a matter of debate, had blocked the state from enforcing the 2005 law as a likely violation of doctors' First Amendment rights. And an appeals court panel had upheld the injunction.
But this past June, the full United States Court of Appeals for the Eighth Circuit voted 7 to 4 to overrule those decisions and allow the statute to take immediate effect. The majority argued that it is objectively true that human life begins at conception, and that the state can force doctors to say so.
Mr. Bush had appointed six of the seven judges in the conservative majority. His administration has transformed the nation's federal appeals courts, advancing a conservative legal revolution that began nearly three decades ago under President Ronald Reagan.
On Oct. 6, Mr. Bush pointed with pride to his record at a conference sponsored by the Cincinnati chapter of the Federalist Society, the elite network for the conservative legal movement. He noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and that represents one of his most enduring accomplishments. While a two-term president typically leaves his stamp on the appeals courts - Bill Clinton appointed 65 judges, Mr. Bush 61 - Mr. Bush's judges were among the youngest ever nominated and are poised to have an unusually strong impact.
They have arrived at a time when the appeals courts, which decide tens of thousands of cases a year, are increasingly getting the last word. While the Supreme Court gets far more attention, in recent terms it has reviewed only about 75 cases a year - half what it considered a generation ago. And Mr. Bush's appointees have found allies in like-minded judges named by Mr. Bush's father and Reagan.
Republican-appointed judges, most of them conservatives, are projected to make up about 62 percent of the bench next Inauguration Day, up from 50 percent when Mr. Bush took office. They control 10 of the 13 circuits, while judges appointed by Democrats have a dwindling majority on just one circuit.
David M. McIntosh, a co-founder and vice-chairman of the Federalist Society, said the nation's appeals courts were now more in line with a conservative judicial ideology than at any other time in memory.
"The level of thoughtfulness among sitting judges on constitutional theory and the role of judges is higher than certainly any other time in my life," said Mr. McIntosh, a former Reagan legal team member and Indiana congressman. "For somebody who has spent a lot of my life promoting those ideas, it's very encouraging to see."
The consequences of the evolving judiciary are only beginning to play out.
In the case of the 2005 South Dakota abortion law, the dissenters - including two Democratic appointees, a Reagan appointee, and a Bush appointee - portrayed the court's decision as a sharp change in direction.
The majority, they contended, had not only bypassed "important principles of constitutional law laid down by the Supreme Court" but also violated the appeals court's established standards for issuing preliminary injunctions.
The Eighth Circuit, with headquarters in St. Louis, now has the appeals courts' highest proportion of judges appointed by Republicans - 9 of its 11 judges. But while other circuits have also grown more conservative, none have yet produced a comparably startling outcome.
Appeals courts tend to change the law incrementally rather than in rapid shifts. They are constrained to follow Supreme Court precedent, and most of their work consists of unanimously disposing of routine cases.
Still, every year courts encounter some controversial cases in which they have greater discretion. In such circumstances, several studies have shown that judges appointed by Republican presidents since Reagan have ruled for conservative outcomes more often than have their peers.
They have been more likely than their colleagues to favor corporations over regulators and people alleging discrimination, and to favor government over people who claim rights violations. They have also been more likely to throw out cases on technical grounds, like rejecting plaintiffs' standing to sue.
Mr. McIntosh defended that record, saying the conservative judges are bringing a neutral application of the law to a judiciary that liberals had politicized. But Nan Aron of the Alliance for Justice, a liberal legal group, said Mr. Bush had "packed the courts" with "extremists" who share an agenda of hostility to regulations and 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," Ms. Aron said.
Mr. Bush's 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.
His judicial selections set off fierce clashes with Senate Democrats. Until a compromise was brokered in 2005, Democrats blocked votes on several nominees for years. More recently, the Senate has not voted on Peter Keisler, a former Justice Department official who defended Mr. Bush's detainee policies. Still, most of Mr. Bush‘s nominees became judges. He is set to leave 15 vacancies; Mr. Clinton left 27.
Conservative and liberal legal activists alike are trying to motivate voters to view the balance of the judiciary as a major issue in the election. Senator John McCain, the Republican presidential nominee, has promised to appoint judges in the same ideological mold as Mr. Bush did, while Senator Barack Obama, a Democrat, has said he will select judges with greater "empathy" for the disadvantaged.
An Obama victory could roll back the Republican advantage on the appeals courts and even create a Democratic majority by 2013, according to a study of potential vacancies by Russell Wheeler of the Brookings Institution. But if Mr. McCain wins, Republicans could achieve commanding majorities on all 13 circuits.
The conservative effort to reshape the judiciary began as a backlash to a string of liberal court rulings in the 1960s and 1970s. Conservatives objected that judges were usurping the role of legislators and should strictly interpret the Constitution based its original meaning. Liberals countered that this approach was a mask for advancing conservatives' policy preferences.
The debate intensified when Reagan came to power. His administration scrapped the ad hoc, patronage-style process previous presidents had used and began vetting potential nominees to find those who shared its philosophy. After the first George Bush became president in 1989, his legal team continued that approach.
His son's 2000 victory revived those vetting practices and - with the participation of Mr. Bush's political adviser Karl Rove - escalated them.
The White House ended the American Bar Association's traditional role in evaluating potential nominees' qualifications. But the administration had other help: the Federalist Society, whose size and influence has rapidly grown since the 1980s.
The society does not formally suggest or vet nominees. Rather, through its conferences and publications, it enables lawyers to identify themselves as committed to a conservative judicial ideology, said Steven M. Teles, the author of "The Rise of the Conservative Legal Movement: The Battle for Control of the Law"
About 46 percent of Mr. Bush's appeals court judges are Federalist Society associates, according to an Alliance for Justice review.
A study in 2006 confirmed that the judges appointed by Republicans beginning with the Reagan administration are, as the Federalist Society's president, Eugene Meyer, put it, "a very different type of judge."
The study, overseen by Cass Sunstein, a Harvard Law School professor who is now an adviser to Mr. Obama, analyzed whether judges voted for a liberal or a conservative outcome in 20,000 appeals court cases. It found that as a group the appellate judges appointed by Presidents Dwight D. Eisenhower, Richard M. Nixon and Gerald Ford voted for a conservative outcome in 52 percent of their cases. Mr. Clinton's judges had an identical record.
By contrast, the appeals court judges appointed by Reagan and the two Presidents Bush took the conservative position in 62 percent of cases. And that number was larger in certain ideologically charged areas, like abortion, affirmative action, environmental protection and whether states have sovereign immunity from federal lawsuits.
Sheldon Goldman, a professor at the University of Massachusetts, Amherst, said recent Republican judges had consistently nudged the law rightward in those cases where they could exercise some discretion. Over time, Mr. Goldman said, this can result in "enormous influence."
That said, Mr. Goldman cautioned that not all of the recent Republican appointees were cut from the same cloth. Some are true movement conservatives, comparable to Justice Antonin Scalia of the Supreme Court, he said, but others are moderate conservatives like Justice Anthony M. Kennedy.
Still, Michael Greve, an American Enterprise Institute scholar and longtime figure in the conservative legal movement, noted that even when the judges considered by his faction to be "truly spectacular appointments" were outvoted, they still served as informal "monitors" by flagging decisions that conservatives on the Supreme Court might overrule.
One such example is Michael W. McConnell, a member of the 10th Circuit, in Denver, a former Reagan legal team member who went on to become a respected legal academic known for questioning court-imposed barriers between church and state.
Judge McConnell's role in registering objections was illustrated by a First Amendment case last year. A Utah city had placed a donated monument of the Ten Commandments in a public park, but it rejected another group that wanted to place a monument to the tenets of its faith, the "Seven Aphorisms of Summum," in the same park. The Summum, a religious organization that promotes mummification, sued.
A trial judge and the appeals court ruled that a government might not discriminate between the two religious messages: If the city put the Judeo-Christian monument up, it also had to erect the Summum monument. Judge McConnell dissented, arguing that it should be fine for the city to accept only the monument whose message it favored.
A colleague accused Judge McConnell of taking an "unprecedented and dangerous" view that ignored "well-established" First Amendment principles. But the Supreme Court has accepted the city's appeal.
Another new conservative anchor is Jeffrey S. Sutton, on the Sixth Circuit, in Cincinnati. Before his appointment, Mr. Sutton, as state solicitor for Ohio, was a leading voice in the push to revive states' rights. He has continued that approach as a judge.
For example, Judge Sutton has opposed federal interference with death sentences imposed by state courts. Last summer, he called into question a ruling that ordered Ohio not to execute a mentally retarded man. A colleague, noting that the Supreme Court had outlawed the execution of retarded criminals, accused Judge Sutton of "efforts to stir controversy where none exists."
Still, Judge Sutton's support for states' rights is not without challenge. He led the 10-to-6 majority - which included seven appointees of Mr. Bush - that sided with the Republican Party this month after it sued Ohio's secretary of state, asking for a federal order changing the state's policy on verifying new voter registrations. The Supreme Court quickly reversed their ruling.
A third new conservative judge attracting attention is Brett M. Kavanaugh, a former legal aide to Mr. Bush. Last summer, Judge Kavanaugh, of the District of Columbia Circuit, dissented in a 2-to-1 decision upholding an accounting oversight board set up by Congress after the Enron scandal. He argued that because the board answered to the Securities and Exchange Commission instead of the president, it violated the Constitution under an expansive theory of executive power that was developed by the Reagan legal team and adopted by movement conservatives.
Still, even conservatives who generally share the same overall approach to the law have intellectual disagreements.
For example, Judge Janice Rogers Brown, a Bush appointee whose appointment was blocked for two years by Democrats, joined the opinion dismissing Judge Kavanaugh's concerns as an effort to "create constitutional problems where there are none."
Judge Brown, a former California Supreme Court judge who had given fiery libertarian speeches, disagreed with Judge Kavanaugh nine times out of 15 split decisions in which both participated, according to a New York Times review of the decisions.
Such disputes among conservatives demonstrate the difficulty of achieving major changes in legal doctrine. Despite the anguish expressed by liberals, "the big surprise for a lot of movement conservatives is how little has been accomplished through that kind of sustained effort over a generation," said Bradford Berenson, who helped vet judges as an associate counsel in the Bush White House from 2001 to 2003.
Still, Mr. Berenson said, the movement might have already accomplished something sweeping, if invisible: slowing the creative exercise of judicial power that was generating many new rights a generation ago.
"Maybe the progress we've made in the courts is best measured by the unknowable crazy things the courts did not do, rather than the things the courts did," he said. "The triumph of the conservative legal revolution is halting the progress of the liberal one."
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