92 Judicature 289 (2008-2009)
George W. Bush's Legacy on the Federal Bench: Policy in the Face of Diversity

handle is hein.journals/judica92 and id is 289 raw text is: A     s presidents exit     While he valued diversity and considered                       that emphasized ideologi-
the main stage of       it when making judicial appointments,                        cal and policy considera-
politics, discussion                 Bush's legacy is more accurately                        tions. In the final analysis,
focuses upon their endur-                                                                   we contend that his motiva-
ing legacy. Judicial nomi-         described as one that emphasized                          tion for appointing nontra-
nations    are   often    a      ideological and policyconsiderations                        ditionaljudges was political
centerpiece of that pur-                                                                     and strategic rather than
ported legacy. Insofar as                                                                    principled and altruistic.
they are outlived on the political landscape by judges with
lifetime tenure, presidents seek longevity of their political  Balancing commitments
values and policy agendas through judicial selection.        To be sure, all presidents vary in the balance they estab-
Always a complex calculus of presidential goals, nominee     lish among the goals involved in makingjudicial nomina-
characteristics, institutional constraints, and opportunity,  tions. One way to understand the variation is to compare
executives since Jimmy Carter have faced an increasingly      presidents on their commitment to pursuing policy pref-
significant consideration as they nominate judges to the      erences via ideologically compatible nominees and their
federal courts: diversity. Indeed, the appointment of non-   commitment to diversifying the federal bench. These
traditional (nonwhite and female) judges has become a        two dimensions are not necessarily inversely related. Pres-
political imperative; there is an expectation that appoint-  idents may weigh them equally, either strongly or weakly.
ments be somewhat representative-however symboli-
cally-of the American populous. Thus, presidents have
sought to balance myriad ftctors, particularly their own     c.We are indebted to Tanya Neel for her meticulous collection of data and
construction of far too many tables. We also thank Ellen Austin and Carolyn
policy preferences, with the need to diversify the bench.    Carnahan for their proficient research assistance.
President George W. Bush is no exception.                      1. This commitment to diversity, we contend, may be normative insofar as
a president may care about diversity for diversity sake. This position recog-
However, we contend that a president's legacy for diver-   nizes the functional and symbolic role of diversity. Symbolic representation
sifying the bench is best understood as a combination of     (that demographic groups in society should see their own members in posi-
tious of power) and/or functional representation (that the interests of these
the aggregate number and the replacement pattern of non-     demographic groups will be supported by their members in power) generate
traditional appointments. When assessed in this way, Bush's  appointing strategies that produce a moderate or major commitment to
diversity. Significantly, these motivations are not mutually exclusive. More-
legacy of diversity is less auspicious than first meets the eye.  over, the appearance of diversity should not be confused with a commitment
'While he valued diversity and considered it-seriously, at   to diversity; indeed, there are other motivations for promoting diversity, not
least among them electoral concerns and campaign promises that are not
times-Bush's legacy is more accurately described as one      necessarily about diversity per se.

Volume 92, Number 6 May-June 2009 JUDICATURE 289

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