The Perils of Shortsightedness

As readers now now, the Court has upheld the ACA 5-4, with Roberts in the majority.

As I noted several times on this blog, the Bush Administration had one primary criterion for its judicial nominees: whether a nominee was likely to vote in favor of the government in War on Terror cases.
I know, for example, of at least two law professors who were interviewed for circuit court judgeships, but were never nominated almost certainly because they were considered not consistently trustworthy on WOT issues.

Here is what I wrote in the wake of the Miers nomination:

Bush What do Miers and Roberts have in common? They both have significant executive branch experience, and both seem more likely than other potential candidates to uphold the Administration on issues related to the War on Terror (e.g., Padilla and whether a citizen arrested in the U.S. can be tried in military court). Conservative political activists want someone who will interpret the Constitution in line with conservative judicial principles. But just as FDR’s primary goal in appointing Justices was to appoint Justices that would uphold the centerpiece of his presidency, the New Deal, which coincidentally resulted in his appointing individuals who were liberal on other things, perhaps Bush sees his legacy primarily in terms of the War on Terror, and appointing Justices who will acquiesce in exercises of executive authority is his priority, even if it isn’t the priority of either his base or the nation as a whole. Such Justices may be coincidentally conservative on other issues, just as FDR’s nominees moved the USSC generally to the Left.

Now we have some data. Alito voted with the conservatives in favor of federalism and Roberts, continuing his pattern in past cases, did not.

It was utter foolishness for the Bush Justice Department to be so myopically focused on one particular issue when appointing Justices who are expected to serve for decades. That said, the relevant lawyers at Justice were almost certainly following the wishes of their boss, who seemed to have no fixed ideology beyond his desire to avenge 9/11 and prevent its recurrence. Nevertheless, my strong sense is that the lawyers in question did not just acquiesce but were willingly complicit, letting themselves get wrapped up in the issue of the moment.

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