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Bush Stresses Judicial Nominations

President Bush's remarks appeared to be aimed at the coming election.
President Bush's remarks appeared to be aimed at the coming election. (By Al Behrman -- Associated Press)
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By Dan Eggen
Washington Post Staff Writer
Tuesday, October 7, 2008

CINCINNATI, Oct. 6 -- President Bush stepped gingerly into the presidential campaign on Monday, offering an implicit endorsement of Sen. John McCain's judicial philosophy and accusing Democrats of contributing to a "broken confirmation process" for federal judges.

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Welcomed here by an enthusiastic crowd of conservative lawyers, Bush also mounted a vigorous defense of his own judicial appointments over the past 7 1/2 years, saying that his nominees make up more than a third of the federal bench and have been "jurists of the highest caliber, with an abiding belief in the sanctity of our constitution."

"The selection of good judges should be a priority for all of us," Bush said at an event co-sponsored by the Federalist Society, an influential conservative legal policy group. "I appreciate that many people listening today and here in this room have worked hard to recruit more Americans to this cause. This work is in all our interests, because the truth of the matter is, the belief in judicial restraint is shared by the vast majority of American citizens."

Bush's remarks, delivered on the opening day of the new Supreme Court session, appeared to be aimed in part at highlighting the issue of judicial appointments during the final weeks of the hard-fought presidential campaign between McCain (Ariz.), the Republican nominee, and Sen. Barack Obama (Ill.), his Democratic opponent.

Bush focused heavily on the push for conservative judges during his own campaigns in 2000 and 2004, and McCain has indicated that he generally shares Bush's judicial philosophy. Yet Bush also has had an uneven relationship with conservative legal activists, in large part because of his failed bid to nominate former White House counsel Harriet E. Miers to the Supreme Court.

In defending the impact of his two appointments to the high court, Bush said Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. have produced a "very different 5-4 majority" that has issued important rulings favorable to conservatives on gun rights and abortion.

Nan Aron, president of the Alliance for Justice, a liberal advocacy group, said that 10 of the nation's 13 federal appellate courts are now "dominated by conservatives" and that Roberts and Alito are part of a "conservative juggernaut."

"This administration has cemented a transformation of our federal judiciary begun by Ronald Reagan, which has resulted in less freedom, less privacy and fewer constitutional protections," Aron said.

But Ed Whelan, a prominent conservative lawyer who is head of the Ethics and Public Policy Center, said Bush's impact has been limited because there were only two vacancies on the high court during his tenure. "That's why McCain is important," he said.

White House aides suggested before Monday's event that the speech would include a reference to the next president, but Bush did not name McCain or Obama. He focused part of the speech on the longtime Republican complaint that Democrats have been too slow to confirm nominees and, in Bush's words, have turned some confirmation fights into "a bad version of 'Survivor.' "

"The American people expect the nomination process to be as free of partisanship as possible and for senators to rise above tricks and gimmicks designed to thwart nominees," Bush said. "If Democrats truly seek a more productive and cooperative relationship in Washington, then they have a perfect opportunity to prove it by giving these nominees the up-or-down vote they deserve."

Democrats expressed surprise that Bush would revive such allegations, arguing that the Senate has confirmed more of Bush's nominees in the past two years than were approved under the previous six years of GOP control.

The White House says 324 of 376 federal court nominees have been confirmed during Bush's tenure, with 34 current vacancies. By comparison, Democrats say, there were 84 judicial openings at the end of Bill Clinton's presidency.

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said in a statement that the "balance on our nation's federal courts is precarious," with 60 percent of the federal bench appointed by Republican presidents. "We cannot afford more of the same if Americans' rights and liberties are to be preserved," Leahy said.

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