Bush Legacy: The Supreme Court

Combine the Iraq morass, a string of legislative defeats, an economy in freefall and a national election that delivered both congressional and executive power to the Democrats, and the eight years of George W. Bush looks to many like a total, dismal failure.

Yet Bush leaves office later this month with one enduring, undeniable legacy: He made a lasting impact on the Supreme Court. History may judge him harshly on many levels, but no historian will be able to write that George W. Bush was unable to deliver on his campaign promises when it came to the court.

In ways that will be felt for decades, his nominations of Chief Justice John Roberts and Justice Samuel Alito will have a pronounced impact on the law and society. Change already is evident.

For conservatives, the change was long in coming. For them, the previous court, led by the late William Rehnquist, had been an ideological disappointment. Although seven of the court's nine justices were appointed by Republican presidents, the court typically reached a less-than-conservative result on sweeping social issues like abortion, affirmative action and individual rights.

More often than not in those controversial cases, the vote was 5-4, with Reagan appointee Sandra Day O'Connor casting the decisive vote with the court's liberal-leaning judges. In case after case, conservatives were stymied, falling short of their goals to remake the court and dismantle liberal precedents from past eras.

Change was on the horizon in the days before the 2004 election. Rehnquist announced he had thyroid cancer, making it all but certain Bush would get an appointment in his second term in office. Even though he would be replacing a conservative with another conservative, Bush would have an opportunity to fill the court's center seat, that of chief justice.

Anticipating Rehnquist's retirement, Bush's top advisers, including the vice president, began secretly interviewing possible nominees in the spring of 2005 so they would be ready with a list of prospects at that historic moment when Rehnquist stepped down.

But then there was a surprise: Sandra Day O'Connor, the swing vote for liberals, delivered a bombshell by announcing she would retire first, before Rehnquist.

Bush would get his moment with not one, but two vacancies. And because he would be replacing moderate O'Connor with a conservative, he would have his chance to significantly change the court's makeup and tenor, where past Republican presidents -- including his own father -- had failed.

But he and his advisers knew he had to get it right. Bush was seared by his father's nomination of David Souter to the Supreme Court. The elder Bush had a rare opportunity with his nominees: He replaced two liberal giants, William Brennan with Souter and, the following year, Thurgood Marshall with Clarence Thomas.

Conservatives were thrilled; liberals were horrified. A Supreme Court nomination can be a president's most lasting legacy. A president can undo any number of previous executive efforts and take different approaches, but he can't change the court unless a justice retires.

And he can't change the court unless a justice retires who has opposing ideological views.

George H.W. Bush got two historic chances, and, from the conservatives' perspective, he blew it with Souter. Souter, an unknown New Hampshire jurist who was portrayed as a conservative quickly became one of the court's most liberal justices.

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