Bush Legacy: The Supreme Court

Jan. 12, 2009 -- 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.

Conservative legal scholars have tagged Souter's selection as one of the biggest blunders of a Republican president in the 20th century.

Bush would not make the same mistake his father had. He had vowed to nominate justices like Thomas and Scalia, and his advisers methodically looked for nominees who would fit that bill. They were looking for solid judicial conservatives with proven track records. They didn't want an unknown like Souter who would prove to be liberal; and they didn't want another Anthony Kennedy, a moderate conservative they believed had drifted to the left in his years on the Court.

The advisers had come to believe that a nominee's service in the executive branch, which typically brought with it critical media coverage, would stiffen a justice's resolve once those critical editorials from top media outlets like the New York Times started rolling in. They cast a wide net, and they narrowed it down to a handful of top prospects.

John Roberts, a highly regarded Supreme Court advocate who had served in two Republican administrations, was one. In his short tenure on the D.C.-based federal appeals court, he had impressed conservative and liberal colleagues alike. Sam Alito, a widely respected Newark, N.J.-based federal appeals court judge with 15 years of experience on the bench, was another.

O'Connor's retirement changed the equation, prompting administration lawyers to double back and renew the search for women and minority candidates. But Bush eventually went back to his original list. He thought Roberts's qualifications "jumped off the page," and he quickly settled on him after personally interviewing him in the White House.

Six weeks later, Rehnquist died of thyroid cancer on the weekend before Roberts's hearings were to begin. His death came at a low point of Bush's presidency. Just five days before, Hurricane Katrina had ravaged the Gulf Coast and destroyed New Orleans, killing nearly 2,000 people and displacing thousands more. As the floodwaters rose and state and local officials floundered, neither Bush nor his administration appeared to grasp the scope of the disaster or the degree of human anguish and misery.

That weekend of Rehnquist's death, Bush was in full damage-control mode. He did not hesitate on his decision for the court's new leader. He called Roberts at home less than 12 hours after the news of Rehnquist's death became public. On Monday morning, he introduced him to the nation as his nominee for chief justice.

Now Bush had to find another nominee to replace O'Connor. He emphatically told advisers he would appoint a woman or minority. But there was no ideal candidate. Some were too old, some too liberal, some too unpredictable, and others had too many potential conflicts or problems.

And as the names fell off the short list, Harriet Miers edged her way onto it. The Miers story is almost a perfect storm of missteps and disconnect at every level within the White House.

Bush's decision to nominate her was driven by his determination not to repeat his father's mistake with Souter. His dad didn't know Souter; his advisers promised Souter was conservative, and they had no idea what they were talking about. Bush knew Harriet Miers, and he knew she would not change or disappoint.

Ironically, the opposition of conservative groups to Miers also was driven by the Souter nomination. To conservatives, Miers was an unproven and untested nominee, just like Souter. How could anyone know she wouldn't drift to the left once Bush left town? And how could she hold up to the liberal intellectual heavyweights on the court like Stephen Breyer?

Alito was waiting in the wings as Miers' nomination fell apart, and with a Republican majority in the Senate, Bush did not have to compromise.

With the nominations of Roberts and Alito, Bush fulfilled his early vow to appoint justices like Thomas and Scalia. His appointees are different, just as Thomas and Scalia are different. So far, for example, both have indicated they are more deferential to precedent and more cautious in their approaches.

 And while the Court is now firmly conservative, it is not forcefully so. It now has four solid judicial conservatives and four solid liberals. Kennedy has become the new swing vote. He is much more conservative than O'Connor was, especially on issues pertaining to abortion and race, but he will sometimes cross sides on other issues.

Any conservative victories -- whether a decision striking down gun bans as violating the 2nd amendment or one upholding limits on specific abortion procedures -- came because Kennedy fell in line.

In the first full term of the new Roberts court in 2006, Kennedy was nearly always in lockstep with the right, and the court appeared headed on a clear conservative path. But the following year, the court had a constellation of cases that saw Kennedy cast some key votes with liberals, leading to liberal victories on presidential power and the environment.

That's not to understate Bush's appointments. It is unlikely Roberts or Alito will drift to the left, and with both men in their 50s, Bush and his team of lawyers will be shaping the direction of American law and culture for a generation.

But the lasting snapshot of the Roberts court has yet to be taken. Barack Obama likely will get at least one appointment -- John Paul Stevens, a reliable liberal, is 88. Ruth Bader Ginsburg and David Souter also are rumored to be looking for an exit.

Those three, however, are all liberal and, presumably, they would be replaced with like-minded jurists. Obama would not change the court's direction from the one Bush set unless one of the conservatives now on the bench left for ill health or other unimaginable reasons.

The recent history of the court, however, is marked with surprises. No one expected O'Connor to step down, which gave Bush a chance to change the Court in more significant ways than any other president in half a century. If Obama wins a second term and a conservative bows out, he could turn the court back to where it was -- or more liberal than it was -- before Bush began.

Jan Crawford Greenburg is ABC's legal correspondent and author of "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court."