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The U.S. Court of Appeals for the Eighth Circuit is the only court where judges appointed by President George W. Bush form a majority. For this reason, a special en banc session held on October 20 in St. Paul offered a fitting vantage point to assess the president’s legacy of judicial nominations. Among the court’s 11 judges, six are Bush appointees. In his four years in office, Bush has appointed 203 judges. The judges of the 8th Circuit are an amiable group, and before the session began they gathered for a group portrait. 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. Photography done, the court began hearing cases. Metaphorically speaking, however, the 8th Circuit judges still faced the middle. As with most of the Bush judges nationwide so far, it was difficult to distinguish them from 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 in most courts 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, Eighth Circuit 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-ranking officers for the illegal search: “Isn’t the person in charge really at fault?” The outcome is hard to predict. 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 U.S. Supreme Court has given them, whether pro- or anti-police. The 8th Circuit, described in the Almanac of the Federal Judiciary as “conservative and nonactivist,” does not seem changed by the 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 adds, “It takes a long time for a president to have impact on the courts.” Mark Levy, an appeals court — watcher at the D.C. office of Kilpatrick Stockton, agrees. “The wheels move slowly,” he says. “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, lower court judges in most cases have little room for ideology to seep in. Through spring 2004, 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 George H.W. Bush, and only nine points behind those of Democrat Bill Clinton. But other recent data suggest that Bush’s appointees are beginning to fulfill expectations, voting conservatively on a range of issues. At one point during the 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 2004 that interpreted the National Environmental Policy Act, the basic environmental law that creates a private cause of action against government agencies. District court 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 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. “We were surprised,” says Jay Austin, a 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 court rulings in which Bush appointees wrote decisions interpreting NEPA to uphold administration actions allowing logging, snowmobiling, bison capture, and timber sales on federal lands. But Bush judges, even when joined by Republican appointees from prior years — Republican-named judges are in the majority in ten of the 13 circuits — cannot always hold sway. So far there is only one Bush appointee on the D.C. Circuit. From the beginning, Bush White House strategists sought to place judicial nominees where they were most “needed.” The D.C. Circuit, with its dominance over regulatory issues, was a key target. But three Bush nominees to the D.C. Circuit are stalled before the Senate, and one nomination was withdrawn. The statistics on decisions published in Judicature were gathered by University of Houston political science professor Robert Carp. He examined cases where there is most often a discernible difference in how liberal or conservative judges rule. On criminal decisions, Carp found Bush judges “somewhat more liberal than one might anticipate.” 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. But Bush appointees deviated sharply from those of past presidents in the area of civil rights. Civil rights 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.” 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 restricting state judgeship candidates from sharing their views on legal or political issues violated the First Amendment. Now the case was back before the 8th Circuit to consider whether the ruling should apply to other Minnesota restrictions barring judicial candidates from using political party endorsements or even attending political gatherings. Many of the judges — Bush appointees included — were skeptical of the restrictions. 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, all the judges laughed heartily — and knowingly. A version of this article originally appeared in Legal Times, a sibling publication of Corporate Counsel.

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