Are judges Bush's most lasting imprint?

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - It was no accident that the first piece of major legislation the House of Representatives passed last week was a rebuke of one of the two justices President George W. Bush put on the Supreme Court, Samuel Alito.

To open the new Congress, the House passed a bill which seeks to undo the 2007 Supreme Court Ledbetter decision which Alito wrote.

The House rebuff points to one indelible imprint of the man whose presidency ends next Tuesday.

Long after Bush is gone from Washington (in fact, long after President-elect Barack Obama is gone), Bush-appointed judges will still be handing down rulings which will shape American society.

Writing for a five-justice majority, Alito said Goodyear Tire employee Lily Ledbetter had missed the deadline for filing a pay discrimination claim because she didn’t do it within the 1964 civil rights law’s 180-day window.

Why Ledbetter lost
Alito said that Congress, in writing the law, intended the deadline for filing discrimination claims to be a tight one. It “reflects Congress’ strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation,” Alito said.

The House-passed bill would reverse Alito and make it easier for workers like Ledbetter, who allege that they’re targets of discrimination, to sue their bosses.

House Democrats weren’t shy about pointing the finger at Alito as the man they saw as the culprit in the 2007 decision.

Rep. Rush Holt, D-N.J., said Alito “wrote the flawed decision…. Lilly Ledbetter was denied justice and the rights afforded to her under the Civil Rights Act. Justice Alito's opinion runs contrary to decades of civil rights law.”

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And Sen. Charles Schumer, D-N.Y., who has often led the opposition to Bush’s judicial nominees, said in 2006 that Alito is one nominee he wished he had done more to block. “My greatest regret in the last two years is that we didn’t stop Alito…. You don’t filibuster unless someone is way out of the mainstream…. Alito clearly seemed to me to be that,” he told reporters.

But Alito at age 58 is likely to be on the court for at least another 20 years.

Still on the bench in 2040?
Chief Justice John Roberts, nominated to the court by Bush in 2005, is 53 years old. If he serves as long as Justice John Paul Stevens, who is the court’s oldest member, Roberts will still be on the high court in 2040.

Even more striking: Bush appointee Brett Kavanaugh, a judge on the powerful United States Court of Appeals for the District of Columbia Circuit, is only 44 years old.

Of federal judges now serving, 311 were appointed by Bush, about 38 percent of the federal judiciary.

His predecessor, Bill Clinton, has 312 whom he appointed still serving on the bench, including two Supreme Court justices, Stephen Breyer and Ruth Bader Ginsburg.

There are 53 judicial vacancies as Bush leaves office. Some of those are especially coveted prizes that the Democratic majority in the Senate has been keeping open for Obama, such as the two vacancies on the District of Columbia Circuit court.

Most of the Bush-nominated judges are district court judges, that is, trial judges whose rulings have only limited effects outside the city or state in which they sit.

But many far-reaching rulings are made not by the Supreme Court, but by federal circuit court judges such as Kavanaugh, who are on the appellate level one rung down from the Supreme Court. Many cases never get beyond the circuit courts. Bush succeeded in winning Senate confirmation for 61 appeals court judges; there are now 15 appeals courts vacancies which Obama will get to fill.

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