William & Mary Bill of Rights Journal


During 2005, President George W. Bush appointed Federal Circuit Court Judges John G. Roberts and Samuel A. Alito to the U.S. Supreme Court. These appointments were the culmination of years of examination of the work, character, and temperament of both men commencing during the 2000 presidential transition. Our evaluation included face-to-face interviews; an analysis of judicial opinions, speeches, and writings; and conversation with friends, colleagues, and court experts. Based on this work, a select group of Bush Administration officials developed a set of predictors that formed the basis of our recommendation to President Bush that he elevate Circuit Court Judges Roberts and Alito to the Supreme Court. This Article explains how Judges Roberts and Alito were evaluated, and our assessment of how they would perform on the Court. The Article then examines whether the Bush Administration correctly predicted how these two men would decide cases before the Court by reviewing some of their most significant opinions to date.

We begin with an explanation of the process used in developing our recommendation to the President followed by a thorough examination of the factors we weighed (such as political considerations and confirmation challenges). The Article includes a thorough, though certainly not exhaustive, review of the circuit court opinions of each man. This early body of work is then compared to their most recent work on the Supreme Court in certain key areas of the law. There is a remarkable, though not unexpected, consistency between Justices Roberts’s and Alito’s jurisprudence on the circuit courts and on the Supreme Court. Based on this comparison, the Article concludes that the Bush Administration successfully anticipated that Chief Justice Roberts and Justice Alito would decide cases using a consistent set of principles including judicial restraint, respect for precedent, and statutory interpretation based on plain language.

There are many decisions and events that define a presidency. Sometimes a president is defined by his response to an attack on American soil, such as Pearl Harbor or September 11th. A president’s legacy has also been shaped by the manner in which he leads the country through a crisis like the Great Depression, or serves as Commander-in-Chief during a world war. One type of decision that receives too little public attention, but which often represents a president’s most enduring legacy, is a president’s appointments to the U.S. Supreme Court. Because the U.S. Constitution provides federal judges life tenure, appointees serve well beyond the term of the president who appointed them, and their decisions will affect the lives of Americans spanning over several administrations. Although unelected, the votes of the members of the Court often do affect the policy decisions of the elected branches. On matters of constitutional questions, absent a subsequent contrary constitutional amendment or a change in the majority make-up of the Court, these decisions on law and policy by the Court are final and binding.

Every administration approaches Supreme Court nominations differently. President George W. Bush, understanding their importance, directed me in early 2001, as White House Counsel, to develop a list of potential nominees in anticipation of a vacancy. After consulting with some of my predecessors in the White House, my team of lawyers in the Counsel’s Office institutionalized a formal selection process. Relying in part upon that process, President Bush nominated Judges John G. Roberts and Samuel A. Alito to the Supreme Court in 2005. This Article describes the nomination process employed by the Bush Administration and examines the reasons for the Roberts and Alito nominations. Next, the Article describes our expectations in 2005 for both men as members of the Supreme Court. Finally, the Article examines the most significant of their Supreme Court opinions, and compares those to the expectations of the Bush Administration. Based on that comparison, the Article concludes that the Bush White House was successful in predicting how Chief Justice Roberts and Justice Alito would decide cases before the Supreme Court. As a result, one can argue that President Bush achieved his objective of nominating judges who would consistently decide cases based on a conservative set of principles, thus placing the jurisprudence of the Court on a conservative path for future generations.