The appointments of Chief Justice John Roberts and Justice Samuel Alito were milestones in your stated quest to transform the courts. Appreciating that a critical duty assigned to the president by the Constitution is nominating and, with Senate advice and consent, appointing judges, you vowed to recommend "strict constructionists." Selection has enhanced importance, given modern perceptions that judges are essentially the final arbiters of societal disputes, including such questions as terrorism and affirmative action. The Hamdan v. Rumsfeld and Grutter v. Bollinger opinions as well as the public school desegregation and Schiavo litigation trenchantly illuminate those notions.
You can still alter the courts, although only ten months are left. Other Justices could resign. You named three hundred appellate and district judges in the first seven years and may choose another fifty. Realization of your objectives necessitates finesse because losing the Senate majority, declining citizen approval, and rising politicization will exacerbate confirmation's already intractable nature. Since 2001, the process has manifested divisive charges and recriminations among you, who tendered controversial nominees, the GOP, which supported them, and Democrats, who applied filibusters when blocking the candidates, even as Republicans pledged to limit this venerable device. If the situation remains acrimonious, it will compound appointments' grievously deteriorated condition, further undermining respect for the Executive, the Senate, and the judiciary-a phenomenon witnessed by the nomination of Harriet Miers. Thus, the nation's welfare dictates that you rise above politics and halt those corrosive dynamics.
You must expeditiously adopt bold, creative steps as your administration closes and approval ratings plummet, if you are to fill the court vacancies and burnish your legacy. Indeed, you may name several Justices and half the federal appellate and district judges, and they will be resolving cases long after you depart the White House.
Carl Tobias, Essay, Dear President Bush: Leaving a Legacy on the Federal Bench, 42 U. Rich. L. Rev. 1041 (2008)