The problem I have with this is that Bush used the executive/legislative at the cost of the Judicial, or often as an end run around the judicial or stare decisis. Things like Terri Schiavo and the Oregon Death With Dignity Act come immediately to mind. Schiavo is obvious. Oregon’s thing violates so many conservative ideals it still bothers me 4 or 5 years later. We (Oregonians) referendum voted on the law twice. It was challenged unsuccessfully in court, and so the Administration attempted to apply its ideas of “moral odiousness” by having Ashcroft threaten doctors with the loss of their license as a result of violating the Controlled Substance Act. This happened in 2001 right after Bush’s campaign ran such a great campaign with limited federal intrusion as on of their core messages.

No to the critical point. These things, and more contemporary issues like Telco Immunity are beginning to see the result of what is effectively a scorched earth policy. A backlash among swing voters, and middle of the road democrats and republicans, and libertarians has come from these types of things (furthered even more recently by the SG in the Heller case).

If we wanted to see some real change in the Judiciary through nominations, the strategy failed to the tactics. In other words, Bush won some battles, but in doing so alienated so many people (like here in Oregon, where we think we should be able to vote (twice) affirmatively on something that wasn’t/isn’t unconstitutional without fear of the feds). So he won some battles but lost the war. Now I suspect we’ll see a backlash to that scorched earth policy.

I DO think (or at least hope), that the Heller case came at a fortunate time in that we aren’t likely to see a panel that’s as or more likely to uphold the appellate’s ruling. Still, it’s a long way off from a sure thing.