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St. Paul, Minn. — On a recent October day, the Warren E. Burger Building here proved a fitting vantage point to assess the legacy of President George W. Bush’s judicial nominations. The Eighth Circuit U.S. Court of Appeals was meeting in a special en banc session in Courtroom 1. On this court, six of 11 judges are George W. Bush appointees, the only court where the current president’s picks form a majority. With Election Day imminent, Bush’s 203 appointed judges are an important part of his record. The judges of the Eighth Circuit are an amiable group, and before the en banc session began on Oct. 20, they gathered for a group portrait that included the new members. The photographer got some to turn to the left, some to the right, all facing toward the middle. They grumbled, joked and did as they were told. The photography done, the court began hearing cases, and still, metaphorically speaking, the judges of the Eighth Circuit faced the middle. As with most of the Bush judges nationwide so far, it was difficult to distinguish them from fellow judges appointed in previous administrations. In important areas, including the environment and civil rights, some court watchers see Bush appointees around the country tacking sharply to the right. And Bush’s combative approach to nominations has triggered bruising fights over nominees like D.C. Circuit choice Miguel Estrada and Fifth Circuit nominee Charles Pickering Sr. But when the headlines fade, in most courts — including the Eighth Circuit on this October day — the Bush appointees who have been confirmed are like any other judges trying to get through the docket. During arguments in a police immunity case, Bush appointee Judge Steven Colloton is sympathetic with police when he asks “why isn’t it reasonable suspicion” for officers to conduct a no-knock search when they suspect a methamphetamine lab is inside. But Judge Michael Melloy, another Bush appointee, seems ready to blame higher officers for the illegal search: “Isn’t the person in charge really at fault?” The outcome was hard to predict. The next case also involved police liability, this time in the context of a high-speed chase that led an officer to crash into a passing car. “Why was it an emergency?” asks Judge Lavenski Smith, a 2002 Bush appointee, with skepticism. But Judge William Riley, also named by Bush, seems to side with the police. “What is conscience-shocking about it?” he asks, referring to the chase. On it goes, with Bush appointees asking the same kind of questions that the rest of the court — two Clinton appointees and three appointed by previous Republicans — is asking. All try to fit the facts of the cases before them into the precedents the Supreme Court has given them, whether pro- or anti-police. The Eighth Circuit, described in the Almanac of the Federal Judiciary as “conservative and non-activist,” does not seem different because of an influx of Bush judges. Not yet, anyway. “Even with a majority of George W. Bush appointees, that court has not yet earned the distinction as the most conservative,” says Howard Bashman, whose How Appealing Web log monitors appellate decisions. Bashman, who addressed a gathering of Eighth Circuit judges recently, adds, “It takes a long time for a president to have impact on the courts.” The vagaries of judicial appointment politics — each candidate needing the approval of home-state senators, for example — make it hard to predict case outcomes based on who picked the judge, Bashman says. Mark Levy, an appeals court-watcher at the D.C. office of Kilpatrick Stockton, agrees. “The wheels move slowly,” he says. “And only in a small minority of cases does the composition of the panel make a difference. If the only thing I know about a panel of judges is who appointed them, I would know something, but not everything I need to know.” Circumscribed by the precedents they are obliged to follow, lower court judges in most cases have little wiggle room for ideology to seep in. Through this spring, according to a statistical study published in the July Judicature magazine, Bush’s appointees have rendered “liberal” decisions in 36 percent of the civil rights, criminal and labor cases they faced — a slightly higher percentage than the appointees of Ronald Reagan, slightly lower than those of his father, George H.W. Bush, and only nine points behind those of Democrat Bill Clinton. Right Turns But other recent data suggest that Bush’s appointees are beginning to fulfill expectations, voting conservatively on a range of issues. At one point this summer, the solicitor general’s office had only two petitions asking the Supreme Court to reverse lower court rulings — an unusually low number that some took as a sign of Bush administration contentment with the appeals court landscape nationwide. “Who is president makes a difference,” says Sheldon Goldman, a longtime scholar of the appointment process who teaches political science at the University of Massachusetts, Amherst. “When you elect a president, you are choosing a Supreme Court and lower courts too.” The newest evidence comes from the Environmental Law Institute, which looked at 325 district and circuit court decisions issued during the Bush administration through June of this year that interpreted the National Environmental Policy Act (NEPA), the basic environmental law that creates a private cause of action against government agencies. District judges appointed by Democratic presidents ruled in favor of environmental plaintiffs nearly 60 percent of the time, the study found, while Republican appointees ruled in their favor 28 percent of the time. But among George W. Bush appointees, the environmental side was favored even less often, in only 17 percent of the cases. The pattern was similar at the appeals court level. In the 11 cases decided by panels with at least one appointee of the current President Bush, the environmental plaintiff won only twice. “We were surprised to find that degree of polarization,” says Jay Austin, senior attorney at the institute. “The idea that neutral, impartial justice would be affected by political affiliation to that degree is troubling.” Austin cites four circuit rulings in which Bush appointees wrote decisions interpreting NEPA to uphold administration actions allowing logging, snowmobiling, bison capture and timber sales on federal lands. And environmentalists’ concern goes beyond NEPA. In a decision criticized by People for the American Way and others, Judge John Roberts, appointed by Bush to the D.C. Circuit, dissented from the denial of en banc review in an important Endangered Species Act case in July 2003. A D.C. Circuit panel in Rancho Viejo v. Norton had upheld a Fish and Wildlife Service regulation protecting the arroyo toad under the act as a proper exercise of congressional power to regulate interstate commerce. Roberts questioned why interfering with the toad, which “for reasons of its own lives its entire life in California,” should be regulated as interstate commerce. The possible unconstitutionality of the Endangered Species Act is an issue before the Supreme Court in a petition filed in a separate case. But the toad ruling points up the fact that Bush judges, even when joined by Republican appointees from prior years –Republican-named judges are in the majority in 10 of the 13 circuits — cannot always hold sway. Roberts and David Sentelle, a 1985 Reagan appointee, were the only judges who wanted to reconsider the pro-toad decision. And Roberts, so far, is the only Bush appointee on the D.C. Circuit. From the beginning, Bush White House strategists sought to place judicial nominees where they were most “needed,” and the D.C. Circuit, with its dominance over regulatory issues, was a key target. But three Bush nominees to the D.C. Circuit — Brett Kavanaugh, Janice Rogers Brown and Thomas Griffith — are stalled before the Senate, and Estrada’s nomination was withdrawn. Civil Wars To compile the statistics published in Judicature, University of Houston political science professor Robert Carp — as he has done with past administrations — looked at cases where there is most often a discernible difference in how liberal or conservative judges might rule. Cases include those interpreting civil rights laws, criminal appeals and labor versus business disputes. On criminal case decisions, Carp found Bush judges “somewhat more liberal than one might anticipate,” favoring defendants 33 percent of the time — higher than any other Republican president’s appointees. The same record was found in labor and economic cases with Bush judges favoring the labor or employee side in 53 percent of the decisions — also somewhat higher than judges named by other Republican presidents. But Bush appointees deviated sharply from those of past presidents in the area of civil rights. Civil rights or liberties litigants won only 28 percent of the time when facing Bush judges, Carp wrote, “giving the president the lowest score of any modern chief executive.” He added that this percentage should not be surprising, given Bush’s active advocacy of conservative views on issues such as affirmative action, gay rights and abortion. One of the most prominent instances in which Bush appointees have made a difference on civil rights came in July. That is when Eleventh Circuit Judge William Pryor Jr., President Bush’s controversial recess appointee to the court, cast the deciding vote against reconsidering a panel decision in the Florida gay adoption case, Lofton v. Secretary of the Department of Children and Family Services. A three-judge panel in that case had ruled that same-sex couples do not have a fundamental right to adopt. On the question of reconsidering the decision, the full Eleventh Circuit voted 6-6, short of the majority needed to take another look at the case. But without Pryor, the only Bush appointee on the court, the vote would have been 6-5, and the case would have been reheard. Back in St. Paul, the en banc Eighth Circuit was rehearing a different kind of civil liberties case — the issue of judicial campaign speech. In the 2002 decision Republican Party v. White, the Supreme Court said restrictions on the ability of candidates for state judgeships to announce their views on legal or political issues violated the First Amendment. Now, the case was back before the Eighth Circuit to consider whether the ruling should apply to other Minnesota restrictions that bar judicial candidates from seeking, accepting, or making use of political party endorsements — or even speaking at or attending political gatherings. Many of the judges — Bush appointees and otherwise — were skeptical of the restrictions. “What is the difference between expressing views and saying you belong to a party?” asked Judge Duane Benton, a Bush appointee. At another point, Minneapolis lawyer William Mohrman, who was challenging the Minnesota rules, sought to dispel any notion that judicial selection, even at the federal level, is apolitical. “The idea that politics doesn’t have anything to do with it — that’s absurd,” Mohrman said. He repeated an observation made at an earlier stage of the case by Judge C. Arlen Beam, that there are three rules for becoming a federal judge: “You must know a senator, you must know a senator, and you must know a senator.” At that, the Bush nominees were one with their colleagues of other political stripes. They all laughed heartily — and knowingly. Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C.

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