What Transformation?

This morning’s NYT echoes the claim often made that President Bush is transforming the nation’s judiciary. According to this story, with Alito’s confirmation the Bush Administration is on the verge of “fundamental reshaping of the federal judiciary along more conservative lines.” Not really. Once confirmed, Justice Alito will likely be a bit to Justice O’Connor’s right on most issues, but this will hardly transofrm the Court. Alito, like Roberts, will likely show substantial respect for precedent, limiting his impact on settled law. In the end, it is hard to see how replacing Justice O’Connor with Justice Alito could have greater direct impact than replacing Justice White with Justice Ginsburg. To place his imprint on the Supreme Court, Bush would need at least one more pick, and would need to replace one of the Court’s four liberals. There are only two Democrat-appointed justices on the Court, but it’s been that way for quite some time — since the confirmation of Justice Thomas. The story also notes that President Bush has appointed approximately one-fourth of sitting federal judges. Yet this is the normal result after a President has been in office for five years. Like other two-term Presidents, Bush will likely have appointed about one-third of sitting judges when he leaves office.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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