Bushwhacked_ Life in George W. Bush's America Large Print - Molly Ivins [101]
14.
Dubya Bush’s Bench
The law is a ass, a idiot.
—MR. BUMBLE, CHARLES DICKENS’ OLIVER TWIST
The trial lawyers are very politically powerful. . . . But here in Texas we took them on and got some good medical—medical malpractice.
—GEORGE W. BUSH, WACO, TEXAS, AUGUST 13, 2002
We’re foursquare in favor of a Texas House resolution that would confer honorary Texanhood upon associate Supreme Court justice Antonin Scalia.
Even though Bush stumbled over Scalia’s name when he had him over the Sunday after the inauguration—mangling it twice in one sentence by calling him first Antonio and then Anthony—the two men have a lot in common. Like Bush, who presided over more executions than any governor in the history of Texas, Scalia is an enthusiast of executions. “The choice for the judge who believes the death penalty to be immoral is resignation,” pronounced Scalia. Even though he was not speaking ex cathedra, Scalia added a religious coda: “Any Catholic jurist [with moral or religious concerns about the death penalty] . . . would have to resign.” (Do they issue black hoods to go with those robes?) Scalia doesn’t like affirmative action. He’s opposed to abortion rights—but apparently doesn’t consider his moral and religious concerns on that issue grounds for resignation. He has problems with gays and lesbians. Doesn’t care much for workers’ rights. As we reported in Chapter 4, his son Eugene is so anti-worker, Bush appointed him chief litigator at the Department of Labor.
If executions, religion, nepotism, and the strong anti-worker career credentials of Scalia père et fils do not a Texan make, then Dubya Bush should sell the ranch and move back to New Haven.
But he could have got the man’s name right. After all, Antonin did cast one of five votes in the 5–4 decision that made Bush president.
At least Bush got it right when he promised high-court justices from the extreme right of American jurisprudence. During the campaign he cited Scalia and Clarence Thomas as the two judges he most admires. Bush didn’t get to fill a Supreme Court vacancy during his first two years in office. He did, however, make a lot of appointments to the thirteen federal circuit courts of appeal created by Congress late in the nineteenth century to relieve the crowded Supreme Court docket. Courts where opinions matter. Nine justices on the Supreme Court decide about seventy-five cases each year. One hundred seventy-nine justices on the federal circuit courts of appeal decide about twenty-eight thousand cases. For most plaintiffs or defendants in the federal system, the district courts of appeal are the Supreme Court.
We’re not saying the Supremes aren’t supreme. It took a shitload of Article 3 supremacy to make Dubya Bush the forty-third president of the United States. But a lot of that supreme authority is shared with 179 (when all thirteen courts are fully staffed) judges on the appeals bench.
That’s why the fight over Texas Supreme Court justice Priscilla Owen, nominated to a seat on the Fifth Circuit Court of Appeals in New Orleans while the ink was drying on the Supreme Court decision that made Bush president, is so important. If Bush had muscled the Owen appointment through the Senate at the beginning of his first year in office, he could have begun to remake the federal appeals bench in the image of right-wing Southern circuit courts he admires: the Fifth in New Orleans and the Fourth in Richmond.
Or in the image of the Texas supreme courts. We have two, the Texas Court of Criminal Appeals, known as “the Rocket Docket to the Death Chamber,” and the Texas Supreme Court, nine justices beloved for their canine fidelity to corporations