Image: RNC lapel button
John Brecher  /  msnbc.com
A button worn by some delegates at the Republican convention last summer celebrated President Bush's two Supreme Court picks.
By Tom Curry National affairs writer
msnbc.com
updated 1/16/2009 10:56:19 AM ET 2009-01-16T15:56:19

It was no accident that the first piece of major legislation the House of Representatives passed last week was a rebuke of one of the two justices President George W. Bush put on the Supreme Court, Samuel Alito.

To open the new Congress, the House passed a bill which seeks to undo the 2007 Supreme Court Ledbetter decision which Alito wrote.

The House rebuff points to one indelible imprint of the man whose presidency ends next Tuesday.

Long after Bush is gone from Washington (in fact, long after President-elect Barack Obama is gone), Bush-appointed judges will still be handing down rulings which will shape American society.

Writing for a five-justice majority, Alito said Goodyear Tire employee Lily Ledbetter had missed the deadline for filing a pay discrimination claim because she didn’t do it within the 1964 civil rights law’s 180-day window.

Why Ledbetter lost
Alito said that Congress, in writing the law, intended the deadline for filing discrimination claims to be a tight one. It “reflects Congress’ strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation,” Alito said.

The House-passed bill would reverse Alito and make it easier for workers like Ledbetter, who allege that they’re targets of discrimination, to sue their bosses.

House Democrats weren’t shy about pointing the finger at Alito as the man they saw as the culprit in the 2007 decision.

Rep. Rush Holt, D-N.J., said Alito “wrote the flawed decision…. Lilly Ledbetter was denied justice and the rights afforded to her under the Civil Rights Act. Justice Alito's opinion runs contrary to decades of civil rights law.”

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And Sen. Charles Schumer, D-N.Y., who has often led the opposition to Bush’s judicial nominees, said in 2006 that Alito is one nominee he wished he had done more to block. “My greatest regret in the last two years is that we didn’t stop Alito…. You don’t filibuster unless someone is way out of the mainstream…. Alito clearly seemed to me to be that,” he told reporters.

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But Alito at age 58 is likely to be on the court for at least another 20 years.

Still on the bench in 2040?
Chief Justice John Roberts, nominated to the court by Bush in 2005, is 53 years old. If he serves as long as Justice John Paul Stevens, who is the court’s oldest member, Roberts will still be on the high court in 2040.

Even more striking: Bush appointee Brett Kavanaugh, a judge on the powerful United States Court of Appeals for the District of Columbia Circuit, is only 44 years old.

Of federal judges now serving, 311 were appointed by Bush, about 38 percent of the federal judiciary.

His predecessor, Bill Clinton, has 312 whom he appointed still serving on the bench, including two Supreme Court justices, Stephen Breyer and Ruth Bader Ginsburg.

There are 53 judicial vacancies as Bush leaves office. Some of those are especially coveted prizes that the Democratic majority in the Senate has been keeping open for Obama, such as the two vacancies on the District of Columbia Circuit court.

Most of the Bush-nominated judges are district court judges, that is, trial judges whose rulings have only limited effects outside the city or state in which they sit.

But many far-reaching rulings are made not by the Supreme Court, but by federal circuit court judges such as Kavanaugh, who are on the appellate level one rung down from the Supreme Court. Many cases never get beyond the circuit courts. Bush succeeded in winning Senate confirmation for 61 appeals court judges; there are now 15 appeals courts vacancies which Obama will get to fill.

Democrats and their allies charge that Bush has been unduly “ideological” in picking what they see as doctrinaire conservatives to serve on the bench.

Feinstein wants pendulum to swing back
“There has certainly been a rightward bent to the courts, particularly the Supreme Court. Now there’s an opportunity for the pendulum to swing back to the middle,” Sen. Dianne Feinstein, D-Calif., a Judiciary Committee member said Thursday as she took a break from the confirmation hearing for Attorney General nominee Eric Holder.

Wade Henderson, president of the Leadership Conference on Civil Rights, a group which has opposed many Bush nominees, said Thursday, “I think President Bush’s most significant legacy will probably be his appointments to the federal courts. In many respects, I regret to say that because I think that unfortunately many of his appointments have been driven by ideological considerations and not by the underlying substance or balance that the federal courts require.”

But didn’t Democratic presidents, too, pick nominees who were in harmony with their views? Didn’t Lyndon Johnson, for instance, pick Supreme Court justices Thurgood Marshall and Abe Fortas because they fit Johnson’s ideological mold?

“Every president is going to choose, to a degree, appointments on the Supreme Court that do reflect his or her broad vision of what the court should do,” Henderson said. “But both Marshall and Fortas had a substantial record of accomplishment and substance prior to their being chosen for the court.” That wasn’t the case with Bush’s judicial nominees, he implied.

Henderson pointed to the federal circuit courts as the battleground that has not gotten enough attention from the public and the news media.

“Those appointments tend to be the most significant because the courts of appeals judges resolve in excess of 94 percent of cases that come before the federal courts,” he said. “Largely those courts of appeals appointments have gone unrecognized because that’s not really the focus of the public’s attention.”

Appeals court victories for Bush
Henderson said he especially regretted Bush putting Judge Janice Rogers Brown on the D.C. Circuit Court, William Pryor on the Court of Appeals for the Eleventh Circuit and Leslie Southwick on the Fifth Circuit Court of Appeals.

“It was clear from Southwick’s record that he should not have been confirmed. What you saw was a history of insensitivity on issues related to gender and to race. Confirmation of Southwick was especially offensive.”

Sitting just a few feet away from Henderson as he made this comment was Feinstein, one of the nine Senate Democrats who voted to confirm Southwick in 2007.

Republicans, naturally, see Bush’s judicial legacy differently and feel some bitterness over the Bush nominees whom the Democrats blocked from getting on the bench.

Sen. Orrin Hatch, R-Utah, a veteran member of the Judiciary Committee, said Thursday that Miguel Estrada, whom Bush nominated to be on the D.C. Circuit appeals court in 2001, “was very badly treated by some on the Judiciary Committee. Estrada should have gotten through.”

Schumer implied that Estrada had given less than truthful testimony to the Judiciary Committee in his confirmation hearing, especially when it came to his role in selecting clerks to work for his former boss, Supreme Court Justice Anthony Kennedy, for whom Estrada himself had once clerked.

Estrada's allies said Democrats were trying to tar a well-qualified and relatively young lawyer who might one day end up on the Supreme Court himself.

Democrats succeeded in blocking Estrada by using filibuster threats which prevented the Senate from ever getting a chance to vote on his nomination. The Senate voted several times on whether to end the filibuster of Estrada; each time the Republicans fell a few votes short. Estrada finally withdrew in frustration.

Hatch also pointed to D.C. Circuit Court nominee Peter Keisler, nominated in 2006, whom the Democrats would never bring to a vote.

“You can’t find a better lawyer or better appellate writer than Keisler,” Hatch lamented. “He’s brilliant and honest, and he was not an ideologue. They wouldn’t even give him a chance.”

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