Bench Memos

Law & the Courts

Re: Baseless Claim that President Bush Would/Might Have Nominated Garland

More against Richard Painter’s baseless op-ed claimWilliam Kelley, deputy counsel to President Bush from 2005 to 2007, has e-mailed me this statement (emphasis added):

As one of the members of President Bush’s staff who spent countless hours helping to organize and run the process of identifying candidates, vetting their records, advising the President on potential nominees, and working to get Chief Justice Roberts and Justice Alito confirmed, it’s fair to say that I’m in a position to comment on Richard Painter’s participation. Professor Painter did a fine job as ethics counsel in the Bush Administration, but he had no substantial role in the process that led to the appointments of Chief Justice Roberts and Justice Alito. Indeed, I don’t recall his having participated at all, although it wouldn’t surprise me if he had been asked to look at some potential nominees from an ethics perspective.

On the question what President Bush would have done had a Supreme Court vacancy arisen during the last two years of his term, obviously nobody knows. And unlike Professor Painter I won’t presume to speculate or speak on behalf of President Bush or his staff. But I can say that anybody who knew the slightest about President Bush’s mind on judicial appointments would have expected to be laughed out of the Oval Office had they suggested nominating to the Supreme Court someone like Judge Garland.  When it came to judicial appointments, President Bush was consistent and clear about what he sought–which was to appoint judicial conservatives who shared his understanding of the proper role of the courts in our constitutional system as law interpreters and not law makers.

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