Bad Faith Bush

Picking nominees for the bench is an important power of the president. What goes into the choice, and what does this tell us about Bush's priorities?

First, I should note that political ideology isn't everything. It's the only thing. Just kidding! Seriously, though, I imagine that the pool of willing candidates is large enough to encompass competent lawyers all along the ideological spectrum. The political question is thus the most salient. My proposition (qualified below) is that most presidents would have no reason to pick nominees who differ from their own ideology. Judicial appointments are also unusually important because they are permanent, so a president's true beliefs are on display in his nominees.

Why choose someone with your own ideology? No one really pretends any more that judicial decisions are politically neutral or irrelevant, so part of promoting the president's agenda is finding judges who will do his work for him later. Starting with this assumption, what are the forces pushing in either direction? Put another way, why would a moderate president appoint an extreme judge, or vice versa?

One is that extreme judges might be able to force compromises that moderate judges can't. Thus, even a moderate president might want extreme nominees to pull the law toward the president's ideology, though he prefers that it not actually go as far as the judge wants. This concept is similar to the work that Professor Sunstein has done on judicial ideology, though his findings weren't quite tailored to this question.

Another factor is predictability. If extreme politics make a judge more predictable, a risk-averse moderate president might nominate an extremist. Similarly, an extreme president might nominate a moderate judge if the opposite is true (lots of neoconservatives are former Marxists, I believe, and I'm sure they were equally annoying back then).

Meanwhile, while the decision is very important relative to its political effects, the public does care about appointments. Interest groups care very much, so possibly presidents can be pushed around by the politics of the moment. Of course, control of the Senate is another factor that plays into all of this.

So, what about Bush? Well, he has a friendly senate and little need to leverage appointments for political gain. If anything, he's risking his popularity to nominate extreme judges. I'm not convinced that extreme judges are more predictable. The trick with predictability is to nominate someone with a solid record; the record need not be more extreme than the president would otherwise choose. Forcing compromise within a judicial panel is a factor, but I'm not sure extremeness helps; it's at least plausible that moderates would be better at forcing compromise.

All of this leads me to believe that Bush is nominating judges who actually reflect his political viewpoint. The problem is, these judges are wildly conservative. Bush claims to be a conservative, of course, but he also claims to represent the values of a majority of Americans. He basically ran as Gore Lite in 2000. If I'm right, Bush has pushed his conservative agenda within the constraints of the political process, which has somewhat obscured his ideology. These appointments, as a window into his actual political preferences, are revealing. What they reveal is a man with utter contempt for the basic structure of our government.