Roberts, Alito help define new Supreme Court

“By far, the most dramatic example of that difference is the partial-birth abortion decision, where Kennedy voted to uphold what O'Connor would have very likely struck down,” said Levey. “An equally dramatic example will likely be provided in the next couple of weeks, when the court rules on the Seattle and Louisville K-12 race-based admissions cases.”

Based on their votes in the 2003 University of Michigan racial preferences cases, Levey said, Kennedy would likely vote against using race in assigning students to schools, and “O'Connor probably would have upheld” the school assignment plan.

Also, because “O'Connor had a liberal streak when it came to women’s issues, she probably would have voted with the four liberal justices in Ledbetter v. Goodyear,” Levey said.

Greenberger said the recent pay discrimination and abortion rulings “strike at the very heart of women’s autonomy, integrity, and ability to be full citizens in this country…. Women’s long-established rights, rights to bodily integrity and privacy, are unraveling. And that is a cause of enormous alarm.”

But Ed Whelan, a former law clerk to Justice Scalia and a former official in the Justice Department’s Office of Legal Counsel under Bush, dismissed the pre-occupation with the shift from O’Connor's views to Alito's.

“I don’t think Alito has some sort of obligation to mimic O’Connor any more than Justice Ginsburg had an obligation to mimic Justice (Byron) White,” whom she replaced in 1993. On abortion, White dissented from the 1973 Roe v. Wade ruling which legalized abortion, while Ginsburg supports it.

“We sure hope that Justice Alito’s replacement of O’Connor is going to improve the court,” Whelan said. “I think it has, but there’s room for a lot more improvement.”

Bush effect on appeals courts
While Bush may not get a chance to attempt more “improvement” by appointing another justice to the high court, he has named 49 judges to the courts of appeals. And that's significant because many cases never reach the Supreme Court.

With 13 appeals court vacancies, Bush is in the midst of standoff with the Democratic-controlled Senate Judiciary Committee over the nomination of Leslie Southwick to fill a vacancy on the Fifth Circuit.

Aron’s group has accused Southwick of being too partial to business interests and voting “consistently against consumers and workers.”

So far Southwick hasn’t been able to get a vote on the Senate floor.

For both Southwick and the president who nominated him, the clock is ticking toward the end of the Bush era for the federal judiciary.

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