How Bush Won the War Over the Courts

Sidebar to: The Next War Over the Courts

Over the course of his term, President George W. Bush upped the number of Republicans on federal courts by 12 percent. With then-chair of the Judiciary Committee, Sen. Orrin Hatch of Utah, as his hired gun, Bush fought tooth and nail for that advantage. Here's how they did it:

Slipshod Standards

Since 1917, presidents have been mailing out blue slips of paper to judicial nominees' home-state senators to invite comment on the nomination. In December 2002, Sen. Hatch announced he would not abide the tradition. No blue slip? No problem.

A Low Bar

President Dwight D. Eisenhower was the first to invite the American Bar Association to screen judicial candidates before their Senate hearing. Bush cut the ABA out of the vetting process, declining its stamp of approval?or disapproval, as he feared.

Majority Rules

Under a Judiciary Committee rule, a nominee stays blocked in committee unless at least one minority party member supports a motion to vote on that nominee. In February 2003, Sen. Hatch excised that rule. The committee went on to hold hearings and votes without a lick of cooperation from the minority.

Multiplicity

In January 2003, Sen. Hatch did away with the Judiciary Committee's practice of holding hearings on only one controversial nominee at a time, making it impossible to scrutinize the record of each.

End-game Ego

In the months before a presidential election, the Judiciary Committee freezes the confirmation process to allow the next president to fill the vacancies. As Bush's term drew to a close, Sen. Hatch conveniently denied this tradition.

Going Nuclear

Bush left Democrats one defense: the filibuster. But Senate Republicans even angled to rid them of that. The "Nuclear Option" aimed to eliminate the right to filibuster a judicial nominee. The ensuing partisan brawl, which put the Senate on the verge of a constitutional crisis in 2005, ultimately ended with a "compromise" brokered by the "Gang of 14" senators. Three highly conservative circuit court judges were then confirmed.

Source: Alliance for Justice, "Judicial Selection During the Bush Administration," October 2008.

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