July 20, 2005

The younger Bush distinguishing himself from the elder.

Here's the transcript of my chat on CourtTV.com last night. Let me focus on this exchange and expand on something (that I talked about on the radio this morning).
Professor Althouse, are you as a woman disappointed that President Bush did not nominate a woman to replace Justice O'Connor?

Ann Althouse: I want to see more women on the Court. But I don't mind that Bush avoided creating a "woman's seat" where O'Connor sat. I think it's good that Bush is giving the impression of picking the best person for the job. Roberts probably is stronger than the female candidates who came close. Clearly, Bush considered women, which is good.
It occurs to me that Bush has done a number of things during his presidency that show a specific choice to do things differently from his father. One thing the elder Bush did is to fill a Supreme Court seat occupied by a "first" as if that first person had transformed that seat into a designated seat.

George H.W. Bush replaced the first black Justice, Thurgood Marshall, with the second black Justice, Clarence Thomas. He nevertheless insisted that he'd picked "the best person for the job" -- something few people believed. (And I'm not trying to disrespect Thomas. I think he's a fine Justice.) The elder Bush not only created a designated seat and resorted to making hard-to-believe assertions about his action, he also undermined his ability to oppose affirmative action, because the Thomas pick was so widely perceived as affirmative action.

The younger Bush has now chosen not to replace the first woman Justice with another woman. So unlike his father, he is not creating a designated seat on the Court. And in picking Roberts, he actually picked someone about whom it can be said convincingly: He was the best person for the job. And he has not limited what he can plausibly say about affirmative action.

I have no knowledge of whether George W. Bush actually thought through the Supreme Court pick using his father's experience as a negative example. (I don't even know whether he thought of the war in Iraq that way.) I'm just pointing out the pattern.


Matt said...

Your post seems to beg the question--When Thomas was nominated, was he the best qualified person for the position? I really don't see how the answer to that can honestly said to be "yes." (Hell, he was probably #2 among "most qualified African-Americans on the D.C. Circuit" behind Judge Edwards.)

Ann Althouse said...

Matt: I have seen the argument made that he impressed close advisors to the president with speeches that he was giving about original intent in constitutional interpretation, something that other persons with elite credentials did not do then. If original intent interpretation was an important enough factor, he could have been the best. Also, his story of struggle from poverty and against many hardships was truly impressive. Read his biography and you'll see.

Eric said...

Well it depends on what perspective you're looking at. If they knew then that he would vote the way he does then he may very well have been the most qualified in terms of deciding on cases the Bush administration would want them to be decided.

Gerry said...

Sam Donaldson told an anecdote about the early stages of Bush's 2000 campaign. He had interviewed the then-Governor, and Bush brought up how he absolutely abhorred when politicans say they will do one thing while campaigning, and turn around to do something else when in office.

I am paraphrasing the way Sam told the story, but he said something along the lines of "when he said this, I almost started salivating, thinking, now I have him." Donaldson twisted the knife, so he thought, by saying "read my lips."

Bush immediately replied "That is exactly the sort of thing I am talking about."

I think there is a lot to say about Bush's family dynamics impacting the way he conducts himself. He very badly wants to do his dad proud, but also seems to badly want to out do his father.

Gerry said...

Found a link that gives a somewhat dry recitation of the tale Donaldson recounted here. Apparently, it is a story that Donaldson has told more than once.

James said...

Well, Sam Donaldson does have more time on his hands nowadays, right?
I do miss thinking of Spock everytime I saw him on Sunday morning TV.

Bush is in an interesting position, following his dad so closely, as opposed to John Quincy following his dad, for example. I think the elder Bush losing re-election drives a lot of this motivation. Even as he probably does have these convictions that are contrary to his father's decisions, in W's view, those decisions failed. So by going against some of those policies (though not all, obviously), he attempts to avoid his father's defeats and also establish his own persona. Two birds, etc.

Bruce Hayden said...

I have always found the argument that Thomas was not the "best" suspect, simply because that term is so hard to quantify. In my memory, really the only nominee that might have been really considered the "best" was Robert Bork, who, of course, never made it to the Supreme Court.

So, how do you determine who is the best qualified? First from a top five law school? By this definition, the vast majority of Supreme Court Justices would not be considered the best.

One question I have is why put the "best" on the Court in the first place? If that means the guy or gal who finished first (or even third) in their law school class, all that really buys you is someone who writes overly complex opinions. (Ok, I am exagerating).

Maybe all that is really needed is pretty good, with a reliable legal philosophy. Indeed, maybe Republican presidents have gotten suckered by this "best" argument, which is why they get so many turncoats when they get on the High Court.

Much better, in my mind, to put a Thomas on the Court, who has been one of the most reliable conservatives on that Court. Much better, for a president's legacy than putting a better credentialed Souter on the Court.

Bruce Hayden said...

Bush (43) seems to have been more traumitized by his father's defeat than the elder Bush (41) was. Partly, this comes from an intense family loyalty - the elder Bush (41) takes the attacks on his son much harder than the younger Bush (43) does, as does his wife.

There were a lot of things that the younger Bush changed, I believe intentionally. One was that he felt that some of those working for his father sandbagged him. There were leaks in his administration that were, to say the least, self serving. The result, I suspect, is part of the reason that loyalty is expected and rewarded with loyalty by the younger Bush. Also, leaking is a cardinal sin, unless it is to his advantage (such as with Rove). In other words, it is ok to leak, if the leak is to advance the President's agenda, but otherwise, it is a firing offense. Also, true scandal is frowned upon, where an office holder abuses his office. He expects professionalism, and gets it.

ziemer said...

i think you're all ignoring the most important factor: ruth bader ginsburg.

if the elder bush had not appointed a black, then there would have been none on the court.

if o'connor had resigned as the only woman justice, i think it is unquestionable that bush would have appointed another woman to replace her.

the pressure to do so would simply have been ten times greater.

Mark Daniels said...

In spite of the respect that the younger Bush clearly has for his father, I agree with you that he's demonstrated a marked penchant for desiring to distinguish himself from George H.W. Bush.

This can be seen for example, in the pains he always takes to say that he understands the difficulties incurred by some in the economy. This contrasts with what seemed to some indifference to some people's economic hardships on the part of his father, a perceived indifference that gave rise to the Carville mantra for Bill Clinton's 1992 campaign, "It's the economy, stupid."

In the realm of foreign policy, George W. Bush has clearly stepped away from the "realism" of his father (and of the Republican Party tradition, generally) to embrace neocon activism. The elder Bush felt no desire to move beyond what had been authorized by Congress and agreed to by the United Nations--expelling Saddam Hussein from Kuwait. The younger Bush initiated a war to expel Saddam from Iraq itself.

The Roberts nomination, as you say, also shows that the younger Bush is intent or content (or both) to be his own person.

The relationship between these father and son presidents is, it seems, more complicated than that which existed between John and John Quincy Adams. In the latter relationship, the son's admiration was complete and insusceptible to the sort of respectfully critical evaluations that the younger Bush, once a political enforcer for his father, seems to have made. This may also explain why the younger Adams shared his father's fate as a one-term president, while the younger Bush found a way to be re-elected.

Like you, I think, Bush is to be saluted for not feeling compelled to view O'Connor's successor as the holder of "the woman's seat." To some extent, Bill Clinton probably gave him some cover by appointing the Court's second woman in Ruth Bader Ginsberg. But I still think that without Ginsberg on the Court, there's a good chance that Bush would have nominated Roberts, for the reasons you cite.

Troy said...

Bush's relationship with his father is relatively easy to explain. GW is like his mother -- period. They are both plain spoken "ring-tail tooters" as my Granny used to say. "Bar" would've been a hell-raiser too in her day given different cultural expectations or if she'd been Bill Bush (or whatever her maiden name was). W doesn't govern like his father (save for mangled syntax and that goofy laugh) because he's not like GHW Bush.

I would be interested in hearing what Barbara Bush would say if asked "Does your son have to pick a woman to replace O'Connor?" Barbara: "Hell, no. That kind of thinking is simple-minded." Probably nicer since the cameras are on and she's a lady, but she'd see through that crap. Dad Bush would've picked a woman -- straight up (though he'll rightly congratulate his son on a fine pick in Roberts because he's a great Dad and a great ex-Prez).

jult52 said...

Great thread. Thanks.

Mark Daniels said...

It's awfully kind and self-restrained of you not to point out that I misspelled Justice Ginsburg's name twice in my comment above. I say that in light of my tweaking you (gently, I hope) for the misspelled headline last week.


jimboman said...

From Echidne, this a.m.....

I have already heard defenses of the Roberts choice as valiant stance against "political correctness". The real political correctness means munching on the dingleberries of the wealthy and powerful, of course, but as usual everything is turned upside down. So being "politically correct" in their sense really means "picking an incompetent woman/Hispanic/black judge". White conservative men are by definition not incompetent, you see.

I know loads of very competitive women and minorities, but they are invisible to George Bush's beady eyes, I guess.

If you see nothing wrong with what is happening, try this thought experiment: The SCOTUS consists of seven women and two men. One man retires and the president replaces him with another woman. We'd never hear the end of the yelling and shouting and breast-beating.

Anonymous said...

Since it looks like Roberts is going to get confirmed (it would take quite a bombshell to derail him at this point), can't we ask the obvious question:

What kind of pressure is Bush under to nominate a women or hispanic when the next vacancy emerges (assuming it's not RBG who steps down next)?

Can he really get away with nominating another white male without beginning to alienate women and hispanics?

Sigivald said...

Jimbo: Yep, we'd hear some shrieking about such a situation.

And it'd be just as wrong then, too.

Once the Constitution is mandated to require at least four men and at least four women, with the odd justice out being variable, I'll care about sex balance on the court.

Not a day before then, however.