According to new analysis by American University and Oregon State University professors, the judicial appointments of former president George W. Bush suggest that his motivation for appointing nontraditional judges was driven more by ideology and strategy than concerns for diversity.
Jennifer Segal Diascro, a professor of government at American University’s School of Public Affairs, and Rorie Spill Solberg, a professor of political science at Oregon State University, coauthored the article appearing in the current issue of the American Judicature Society’s journal Judicature.
The examination of all the federal judicial appointments during the two terms of his presidency shows that Bush did make a number of diverse appointments, especially Hispanics, but the overall number of minority judges in the federal courts did not increase during his tenure.
“Bush cared about diversity, but it was not his first priority,” Diascro said. “We suspect that he had many Hispanic conservatives from whom to choose when filling vacancies on the bench, yet he chose to appoint traditional candidates instead.”
According to the article, when compared with all presidents since Jimmy Carter, Bush maintained the status quo in appointing nontraditional judges to the bench. He appointed more men (78 percent overall) than women (22 percent) and more Caucasians (82 percent) than minorities (18 percent).
When comparing total appointments, the study found that Bush appointed more white females (50) than Carter (32), Ronald Reagan (27) or George H.W. Bush (31), but fewer than Bill Clinton (83). He appointed more Hispanic females (12) than Clinton (5), but fewer African American females (8 compared to 15) than Clinton.
Like Carter, Reagan, and George H.W. Bush, George W. Bush often appointed minorities to seats for political gain or for ideological purposes, Spill Solberg explained.
“There is a tendency, and we see this across the political spectrum, to use bench appointments to gain clout with certain voters,” she said. “The Bush administration was actively courting the Hispanic vote, so it isn’t surprising that he made more appointments of Hispanic judges than African Americans, but it was often also based on judicial philosophy.”
“Not so for African Americans,” said Diascro. “By the time Bush left office, the proportion of seats on the court of appeals held by African Americans had increased by only half a percent. Moreover, two of the four African American men appointed to the circuit bench were originally appointed by Clinton, and they were nominated by Bush with the first panel of nominees in the first few months of his first term. He made only four more African American appointments to appellate courts during his eight years in office. This is a perfect example of a symbolic effort—rather than a genuine pursuit—of racial diversity on the federal bench.”
In contrast, the study shows that Clinton often stressed diversity and representation over ideology. He often picked moderate and conservative minority and female judges even though they did not necessarily reflect his own political philosophies.
Looking ahead, Diascro and Spill Solberg reflect on what the judicial legacy of Barack Obama’s presidency may be compared to his predecessors. Their conclusion so far is that Obama—like Clinton—will emphasize diversity over ideology. His nomination of Judge Sotomayor to the Supreme Court reinforces this notion.
“His nominations thus far demonstrate his reluctance to appoint ideologues,” the authors write. “This is especially true for Judge Sotomayor, who is not the most liberal choice among the female candidates reportedly on the President’s short list.”
In determining the ideological nature of Bush’s federal judge appointments, Diascro and Spill Solberg relied on statements from Bush and members of his administration and consulted statistical analyses by Carp et al. (published in the same issue of Judicature) that reveal Bush’s appointees to the lower courts were indeed conservative. To assess the relative ideology of Judge Sonia Sotomayor and other women on Obama’s short list, Diascro and Solberg used the Judicial Common Space scores developed by Lee Epstein and colleagues. The empirical measurements used to assess ideology are all considered reliable and valid measures employed by political scientists.
“Replacement patterns are key to understanding efforts to increase diversity on the bench,” said Diascro. “Presidents may appoint a number of nontraditional judges, as President Bush did, but if their appointments maintain the status quo and don’t add nontraditional judges, then their impact is less than it could be.”