Bush's judicial nominations, McCain's?

by James Gerstenzang

Mentioning neither William Ayres and the Weather Underground nor the Keating Five, the two hot topics du jour of the presidential campaign, President Bush managed nevertheless to quietly slip himself into the campaign on Monday by delving into a secondary issue: What standards a president should apply when picking judges.

Bush did not have to say about whom he was speaking. He never said "Obama" or "McCain," "Democrat" or "Republican."

But speaking to a conservative legal gathering in Cincinnati, he injected the subject of judicial appointments -- from the district court level up to the Supreme Court -- into the debate, and made it clear that in considering election choices, the president's role in nominating jurists must not be overlooked.

But the president was using a double-edged sword. It is a topic that can energize activists in both parties, (as our colleague Jim Gerstenzang notes of Bush's judicial comments in Countdown to Crawford).

"The lesson should be clear to every American, and that is: Judges matter," he said. (If anyone doubted that, he offered this statistic: He has nominated more than one-third of the judges now holding lifetime appointments on the federal bench.)

No surprise in his instructions: Find judges who will "interpret the Constitution and not use courts to invent laws or dictate social policy."

And no surprise that they fit nicely with John McCain's approach.

As for the process of nominating judges and confirming them in the Senate, it's "broken," Bush said. Lawyers are declining nominations out of concerns about the delays they might face in gaining a vote in the Senate -- and the "ruthlessness" of the confirmation process.

Bush said:

A judicial nomination should be a moment of pride for nominees and their families -- not the beginning of an ugly battle. And the confirmation process should befit the greatest democracy in the world -- and not look like a bad episode of 'Survivor.'

Not so quick.

The Alliance for Justice, a liberal legal watchdog group, used Bush's speech to draw attention to its study of the Bush judiciary, and said that 10 of the 13 circuit courts are dominated by conservatives.

Bush's appointment of Chief Justice John Roberts and Justice Samuel Alito to the Supreme Court created a "conservative juggernaut that "has already weakened pay discrimination laws, civil rights precedent, and environmental protections," the Alliance for Justice said.

Nan Aron, the group's president, said:

Just as past Republican presidents have done, he is hoping to energize his party's base by flaunting his conservative bono fides.

Bush spoke to an audience assembled by the Ashbrook Center for Public Affairs, a conservative public policy institute at Ashland University, and by the Federalist Society, a conservative legal affairs organization.