WASHINGTON – No need to wait until President Bush appoints a Supreme Court justice to see how he will make his mark on the federal judiciary. One level down, dozens of conservative appeals court judges appointed by Bush already are helping to shape the law in ways that ultimately could have as much, and in some ways even more, impact than the nine justices of the nation's highest court.
Since Bush's appellate judges have only gradually taken their seats on benches around the country, and the cases that they draw run the gamut, it's still early to chart their impact on specific issues. But already it is clear that these judges make up a solidly conservative crowd that tends to lean Bush's way on the big issues of the day.
So far, Bush's appointees to the appeals court are showing patterns very close to judges of his Republican predecessors in ideologically contested cases, according to law professor Cass Sunstein at the University of Chicago, where the Chicago Judges Project is tracking the federal judiciary.
"There's no discernible rightward shift by the Bush appointees compared to the Reagan and Bush I appointees," said Sunstein. Still, he rejected Bush's contention that the president looks solely for judges — and Supreme Court justices — who will strictly interpret the Constitution rather than parsing their views on hot issues such as abortion (search).
"There may be no litmus test, but the president will appoint someone who is in the conservative mold," said Sunstein. "When the president talks about strict construction, everyone knows what he's talking about."
Because appeals courts rule on thousands of cases each year, compared to only about 75 a year decided by the Supreme Court, the impact of Bush's appellate judges could be far-reaching.
"There's a tremendous amount of space for circuit judges to interpret Supreme Court decisions," said Frank Cross, a law professor at the University of Texas at Austin. For example, he said, they have considerable latitude in interpreting the Roe v. Wade (search) decision that legalized abortion.
And according to NARAL Pro-Choice America, appeals court judges appointed by President Reagan and the two Bushes have been four times more likely to issue "anti-choice rulings" than judges appointed by other presidents.
On another matter, two of Bush's nominees to the D.C. Circuit are poised to have significant impact on a pair of cases involving challenges to the U.S. military's detention of foreign nationals at Guantanamo Bay, Cuba. Janice Rogers Brown (search) and Thomas B. Griffith (search), both just placed on the bench last month, were picked at random to sit on a three-judge panel that will hear the cases this fall.
Overall, in his four-plus years in office, Bush has pushed a Republican-leaning federal judiciary farther to the right with more than 200 appointments to appellate and district courts.
His district court appointees have been "dramatically conservative but not off the board — not so bizarre that the other judges wouldn't know them or speak to them," said Robert A. Carp, a political scientist at the University of Houston who has studied the federal judiciary extensively. Bush's district appointees stand out as particularly conservative on civil liberties cases such as abortion, freedom of speech and gay rights, Carp found.
On these matters, Bush's district judgeships were rated 28 percent liberal in Carp's study. That put them well to the right of jurists appointed by Presidents Nixon, at 38 percent, and Ford, at 40 percent, and slightly to the right of Reagan and the first President Bush, both of whom were rated 32 percent liberal.
By the end of his second term, Bush could eclipse Presidents Clinton and Reagan in the number of judges selected — and leave an ideological imprint on the courts for generations to come.
Since 1968, when Nixon was elected, Republican presidents have appointed 1,040 judges; Democrats have named 625. While many of the Bush appointees are replacing jurists named by previous Republican presidents, toward the end of his term Bush could have more opportunities to replace some of the Clinton judges, which would have even greater impact.
The cumulative effect, said political scientist Donald Songer of the University of South Carolina, is that "the last three Republican presidents' nominees control virtually the whole judiciary."
Interest groups on the left and right, predictably, have alternately cast Bush's judicial appointees as either ideological extremists or principled jurists untainted by politics.
People for the American Way, a liberal advocacy group, titled its 2004 study of Bush's judicial appointees "Confirmed Judges, Confirmed Fears." It concluded that Bush appointees already have moved to limit significantly congressional authority and protection of individual rights.
"For many, many of the nominees in the lower courts, the Bush administration has been decidedly pushing toward judges with a pretty firm right-wing ideology," said Elliot Mincberg, the group's legal director.
On the other end of the ideological spectrum, conservative groups have credited Bush for selecting judges who "adhere to an apolitical, non-results-oriented way of reading the law," in the words of Sean Rushton of the Committee for Justice. Liberals, Rushton said, look at judges' rulings "through the lens of results rather than asking is it good law."
Wendy Long, counsel for the conservative Judicial Confirmation Network, said that when it comes to the courts, Bush "gets it" in a way that even his father and Reagan did not. His nominees "understand the problems with the way the Constitution has been interpreted and will go about fixing that in their own decisions," she said.