Bush's Lasting Legacy: A Pro-Business Judiciary

If Democrats win the presidency, they'll try to reverse many of Bush's policies. But in one area, their hands will be tied.

By Jonathan N. Crawford, Researcher-Reporter, the Kiplinger letters

March 10, 2008

President George W. Bush will leave an unmistakably conservative imprint on federal courts, one that will be hard to erase because so many of his life appointees to the bench are so young. More than a third of the appointments Bush made to the U.S. Court of Appeals, for example, were under 50 years old at the time of confirmation.

That's clearly good news for businesses, which are already seeing the fruits of Bush's labors. And nowhere is that clearer than in the Supreme Court. Bush's appointment of two relatively young, solid conservatives -- Chief Justice John Roberts, 53, and Associate Justice Samuel Alito, 57 -- has steered the Court to the right and in favor of policies that benefit business. "Already, we can say that George Bush is leaving behind a very profound legacy. This will be his major accomplishment," says Sheldon Goldman, professor of political science at the University of Massachusetts at Amherst.

Gene Schaerr, a partner at law firm Winston & Strawn, agrees. "It's pretty clear that there's a trend away from populism…toward what I call a business-friendly pragmatism," he says.

A Democratic president couldn't easily shift the Court's direction. The two justices most likely to step down over the next few years -- John Paul Stevens, 87, and Ruth Bader Ginsburg, 74 -- lean liberal. Consequently, a Democrat -- either Barack Obama or Hillary Clinton -- couldn't do much more than preserve the current balance. On the other hand, John McCain, the presumptive Republican nominee, could push the Court further right, depending on the makeup of the next Senate and his powers of persuasion.

Schaerr says that the Court's business-friendly pragmatism is most obvious in the antitrust and punitive damages arenas, in cases such as Stoneridge Investment Partners v. Scientific-Atlanta Inc. In that instance, the Court restricted the types of securities fraud lawsuits that could be brought against companies.

In addition, the high court has limited punitive damages. In Philip Morris USA v. Williams, a tobacco suit argued in the last term, the justices handed down a ruling that favored the cigarette maker. More recently, in Riegel v. Medtronic Inc., the Supreme Court limited the types of lawsuits that can be filed against manufacturers of medical devices.

Bush's legacy in the judiciary is not limited to the Supreme Court. Through a hefty number of lifetime appointments of judges, currently at 293, Bush has also put his mark on the U.S. Court of Appeals and, to a lesser extent, the U.S. District Courts. Bush appointments, many of whom are young and conservative, constitute well over a fifth of all sitting judges. That's actually less than the 367 judges nominated by former President Bill Clinton in his two terms, but Clinton was forced to name more moderate judges because he was mostly dealing with a Republican-run Senate. And when Bush's appointments are combined with judges appointed by other Republican presidents, those that lean right constitute 60% of the federal judiciary. That kind of lead makes it harder for a Democratic president to tilt the courts back in their favor.

Goldman says that Republicans are happy with the changes Bush has made in the U.S. Court of Appeals, noting that he has "weeded out moderate liberals." And according to Curt Levey, executive director of the advocacy group Committee for Justice, most of the judges that have been appointed have not strayed from the party's ideology. "In terms of the Court of Appeals, the vast number had the right philosophy, constructionism versus activism," he says.

For a president beleaguered with criticism for a crumbling economy, a drawn-out war and skyrocketing national debt, Goldman says that Bush's judicial appointments may be his redeeming quality for Republicans: "He can go to the conservative base and say he has delivered. That is the one thing he has done."

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