George W. Bush, the Supreme Court, and the Pursuit of “Big Government Conservatism” in Federal Personnel Management

Date01 December 2010
AuthorDavid H. Rosenbloom
Published date01 December 2010
Subject MatterArticles
Review of Public Personnel Administration
30(4) 467 –485
© 2010 SAGE Publications
Reprints and permission: http://www.
DOI: 10.1177/0734371X10381484
4ROP30410.1177/0734371X10381484RosenbloomReview of Public Personnel Administration
© 2010 SAGE Publications
Reprints and permission: http://www.
1City University of Hong Kong and American University, Washington, DC
Corresponding Author:
David H. Rosenbloom, City University of Hong Kong and American University,
4400 Massachusetts Ave NW, Washington, DC 20016-8002
George W. Bush, the
Supreme Court, and the
Pursuit of “Big Government
Conservatism” in Federal
Personnel Management
David H. Rosenbloom1
Ironically, by the end of the first year of the Obama administration, President George
W. Bush appears to have gained an indirect impact on public personnel policy through
his appointments of Chief Justice John Roberts and Justice Samuel Alito. In cases involving
public personnel issues, both jurists have supported Bush’s preferences with respect to
strict construction, executive power, and the use of racial and ethnic preferences. With
one Obama appointee on the Supreme Court and another nominated, the prospects
for the durability of that legacy in pursuit of “big government conservatism” are unclear.
Nevertheless, this article’s analysis of Bush’s appointment “power in use” comports with
findings regarding judicial appointee loyalty to presidential agendas that have emerged
in recent years. It also suggests that further research on presidential appointments of
federal judges and justices is needed and may demonstrate that the appointment power
is an important determinant of public sector personnel policy in the United States.
George W. Bush, presidential appointment power, Supreme Court, executive power,
strict construction, racial and ethnic preferences
U.S. presidents play a substantial role in federal personnel management. Constitu-
tionally, presidents depend on legislation and delegations of legislative authority to
468 Review of Public Personnel Administration 30(4)
create positions, draw money from the treasury, organize and reorganize agencies,
and make rules for the federal service. Absent legislation, the president’s executive
power under Article II, clause 1, includes the authority to dismiss some (but not all)
presidential appointees at will (see Morrison v. Olson, 1988). The implied powers
clause, Article II, clause 3, authorizes the president “to take care that the laws be
faithfully executed” and provides the legal basis for a variety of executive orders
dealing with federal personnel matters. The Constitution also enables the president to
have an indirect impact on personnel administration and other matters through
appointments to the Supreme Court.
What impact on federal personnel matters has President George W. Bush had
through his Supreme Court appointees to date, and what legacy might Bush’s appoin-
tees leave for the public personnel profession? As the editors outline in their intro-
duction, one key component of “big government conservatism” is the decidedly
Hamiltonian notion of “energy in the executive.” Thus, judicial interpretations of the
law that advance strong presidential or executive branch leadership of human resource
management are likely to support the general privileging of presidents pursuing a con-
servative agenda (albeit also of presidents opting for moderate and liberal causes).
Hence, judicial decisions also must support the substance of the big government con-
servative agenda that Bush pushed so vigorously through aggressive use of presiden-
tial tools and that President Obama has taken steps to attenuate—at least with regard
to “conservative”—with his first two nominees to the Supreme Court (Sonia Sotomayor
and Elena Kagan).
This article examines Bush’s potential legacy regarding big government conserva-
tism by first reviewing Bush’s preferences in judicial philosophy as evidenced best by
his two Supreme Court appointees, Chief Justice John Roberts and Justice Samuel
Alito. Reviewed next are the arguments offered and impact felt by Roberts and Alito
in three major areas of jurisprudence relevant to personnel administration and indica-
tive of Bush’s big government conservative agenda: speech rights of public employ-
ees, affirmative action, and qualified immunity and executive autonomy and power.
Analysis reveals consistent support by Roberts and Alito in these areas. The article
concludes by observing that although Obama’s appointees may push the Supreme Court
in an opposite direction, Bush’s perspective will nevertheless have two strong and
active big government conservative voices capable of shaping the future of public
personnel management, as long as Roberts and Alito remain on the court. The durabil-
ity of longer-term impact aside, analysis suggests that the previously underresearched
study of the impact of presidential appointments to the Supreme Court on public per-
sonnel administration is likely to be a fruitful one for scholars.
Presidents, Supreme Court Appointments, and the Big
Government Conservative Agenda of George W. Bush
There is a great deal of research on the power of presidents to appoint Supreme Court
justices as a means of furthering their policy and political agendas (e.g., Abraham,

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