- The Washington Times - Tuesday, August 25, 2015

Former Florida Gov. Jeb Bush has tried to put some distance between himself and his famous family’s history of judicial nominations, saying he would look only at potential picks who have a “proven record” rather than bowing to political considerations.

He said past presidents — whom he didn’t name, but the past two Republicans in the White House were his father and his brother — have picked people “that don’t have a proven record” because they’ve been too worried about facing an increasingly bloody Senate confirmation process.

“They wander, and you go, ‘How could that be?’” Mr. Bush said at a town hall meeting this month in Keene, New Hampshire.

“Because we’re in this partisan environment now where every one of these appointees, it’ll be a big huge fight, and so, I believe we need to have people of experience, of a proven record, a consistent judicial philosophy that you know because they’ve done it over and over and over again, and then you got to fight like hell to make sure they get passed, and that’s my pledge,” the former governor said.

Carrie Severino, chief counsel and policy director at the Judicial Crisis Network, a conservative legal advocacy group, said Mr. Bush’s sentiment is “exactly right, in my opinion.”

If President George H.W. Bush had followed this policy in 1990, she said, he could have prevented one of conservatives’ least-favorite court picks, Justice David H. Souter.

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Known as the “stealth” nominee because of his slim public record, Mr. Souter was assured to be an easy choice for conservatives by the White House chief of staff. But over the next two decades, Justice Souter repeatedly sided with Democrat-appointed justices on major rulings.

“Jeb Bush’s comments really address the classic Souter problem, as people see it,” said Ms. Severino. “If President Bush 1 had followed the advice of his son at the time, we wouldn’t have had a Souter.”

Ms. Severino did say the 41st president’s record also included a win with the appointment of Justice Clarence Thomas, for whom Ms. Severino clerked, and who has been among the court’s most conservative members.

More recently, conservatives have questioned the 2005 nomination of Chief Justice John G. Roberts Jr. by President George W. Bush after two rulings upholding the core of Obamacare as constitutional and legal. The 43rd president also chose his own attorney, Harriet Miers, to fill a Supreme Court seat but withdrew the nomination after outrage by conservatives and instead picked Justice Samuel A. Alito Jr., who has been rated a success by conservatives.

Kristy Campbell, a Jeb 2016 campaign spokeswoman, cited her boss’s record as governor of Florida in a response to The Washington Times.

“As evidenced by his record in Florida, Governor Bush would nominate and fight to confirm individuals with a clear, proven record grounded in strictly interpreting the law, not legislating from the bench, and adherence to the Constitution’s limits on government’s authority,” she said.

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Nevertheless, that family history has some on the right wondering about Jeb Bush.

Mark Meckler, a co-founder of the Tea Party Patriots, said Mr. Bush’s words sound good, but he is still largely relying on the same advisers as his brother and father.

“It’s hard to say whether it’s lip service,” Mr. Meckler said.

Mr. Bush, the former Florida governor, has said he was disappointed in the Supreme Court’s two high-profile rulings in June, which upheld a key provision of Obamacare and affirmed same-sex marriage as a constitutional right.

Speaking to radio host Hugh Hewitt in late June, Mr. Bush likewise talked about a need for people who have a “proven record of not legislating from the bench.”

Asked about Chief Justice Roberts, Mr. Bush said: “Well, I liked one of his rulings, and I didn’t like the other, but he is a person of unimpeachable integrity and great intelligence, and I’ve met him a few times. And he’s an impressive guy for sure.”

Mr. Hewitt also asked Mr. Bush how he would avoid nominating someone like Justice Souter.

“I think the way you do it is that you focus on people that are qualified to be Supreme Court justices that have a proven record of judicial restraint,” Mr. Bush said. “And so I think you have to be all in to fight for people that have a record, because today in America, the minute you have a record, you’re subject to attack. But that’s the best way to prove that someone has a consistency in their view of, in terms of judicial philosophy.”

Mr. Bush isn’t the only Republican who has been pressed recently on the question of judicial nominations. New Jersey Gov. Chris Christie has been criticized for what some conservatives say were liberal appointments to the bench in his state.

Mr. Christie defended his record by saying he had to make compromises with a Democratic state Senate but still has appointed judges who believe there is no room for judicial activism or legislating from the bench.

“What I did was I got three conservative Republicans in exchange for one Democrat. That’s a pretty good deal,” he said during a “Fox News Sunday” interview last month in which he discussed his appointments to the state’s highest court.

“If we had those kind of justices and more of them we would not have had the same-sex marriage decision that we had last week and we wouldn’t have had the Obamacare decision,” he argued. “So, if the Christie type of judges had been on that court in the majority, we would have won those cases in the Supreme Court rather than lost them.”

Conservative activists dispute Mr. Christie’s contention, claiming none of his appointees to the state Supreme Court have proved to be true conservatives.

“He broke his promise. … The court remains liberal,” the Judicial Crisis Network says in an ad that has greeted the New jersey governor in some early primary states. 



• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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