"History repeats itself; that's one of the things wrong with history."  And, so it is with the Presidents Bush, father and son. Like Father, Like Son: A Legal Legacy Lost?

Isn't it funny how history — even recent history — repeats itself in spite of the oft-cited aphorism that it's important to learn from history so we don't repeat it.  More realistically, famed lawyer Clarence Darrow once noted, "History repeats itself; that's one of the things wrong with history."  And, so it is with the Presidents Bush, father and son.

Just a few months ago, we reminded conservatives that, despite the numerous failures of this administration, it was important to remember the current President's "Big Campaign Promise Kept". Specifically, we explained that President George W. Bush's "most important and lasting legacy may be the federal courts, and specifically, the U.S. Supreme Court."  After all, in putting Chief Justice John Roberts and Justice Samuel Alito on the highest court in the land, Bush 43 kept his promise to appoint reliably conservative jurists who understand their limited role to interpret the law rather than make it from the bench.

We were far from alone in our admiration for the record of the younger President Bush on judicial nominations.  Just before the Senate's confirmation of Justice Alito, the Wall Street Journal's editorial page touted the new justices as "the most important domestic success for President Bush since his 2003 tax cuts." 

The Journal went on to note, "These look like legacy picks....  And with two distinguished conservative jurists joining Justices Antonin Scalia and Clarence Thomas, the Court is closer than it's been in 50 years to having a majority that can restore Constitutional interpretation to its founding principles." 

Legal affairs reporter Jan Crawford Greenburg agreed in her best-selling book "Supreme Conflict."  Indeed, Greenburg's conclusion is that, by appointing Chief Justice Roberts and Justice Alito, "George W. Bush and his team of lawyers will be shaping the direction of American law and culture long after many of them are dead."

It's true, a little more than a year later now, that there can be no doubt the High Court is two votes closer to fulfilling the constitutional vision that has been a centerpiece of the conservative movement since the Reagan administration.  But that doesn't mean that President George W. Bush has secured his legal legacy.  In fact now it appears that, because of his administration's frequent controversies, quite the opposite might be true.  Bush 43 may have imperiled his legal legacy just as Bush 41 sacrificed his own, not to mention Ronald Reagan's, as well.

You see, there is a simple rule that prevails on the highest court in the land: it takes five to win.  Any less, and there will have to be some compromise.  Unfortunately, despite the fact that Republican presidents have appointed twelve of the last fourteen justices (if you count Rehnquist only once, otherwise it's thirteen of fifteen), a solid conservative majority has never been able to secure that fifth consistent vote. 

This shortfall remains today, with Justice Kennedy holding the swing vote.  Thus, in the words of leading Supreme Court practitioner Tom Goldstein, "whether the Court moves more fundamentally to the right, so that it could genuinely undo the jurisprudence of the Warren Court, depends on the next President."  And, according to Goldstein, "[t]he next President ... will have two appointments immediately (replacing [Justices John Paul] Stevens and [David] Souter," with "a very substantial prospect that a Democrat would quickly be in a position to appoint a third (replacing [Justice Ruth Bader] Ginsburg)."

All this means that, like his father, President George W. Bush may end up sacrificing a long-term legal legacy at the alter of his increasingly criticized presidency.  The High Court reality conservatives must face is that it will be the next President who will determine the direction of the Supreme Court for many years to come.

Bush 41 lost his legal legacy not through judicial picks — though conservatives know there can be no more Souters — but by losing the White House.  That election meant that a Democrat and a liberal, President Bill Clinton, was able to prevent a solid conservative majority from forming on the High Court through the appointments of Justices Ginsburg and Stephen Breyer.  In other words, had the father been able to win re-election, then it might have been Justices Ken Starr and Laurence Silberman instead.  Five votes, indeed.

Fast forward to today and Bush 43 has become so entwined in unpopular controversies that the political environment for the next Republican presidential candidate looks far more negative than it did for Bush 41 in 1992, with conservatives dispirited and liberals on a tear.

Once again, a Bush has brought us to the brink of a consistently conservative Court only to risk that elusive fifth vote.  It seems history may repeat itself again, this time because for the family Bush, with regard to the Court, it may be like father, like son.

May 25, 2007
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