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Will Election Have "Seismic" Effect on Federal Courts?

The National Law Journal reports on a new Brookings Institution study on how the Presidential election could influence the composition of the federal courts.

Republican presidents have appointed more than half of the current 179 federal appellate judges, but that could rise dramatically to 74 percent if Sen. John McCain wins the presidency, or give Democrats a 56 percent majority in appointments if Sen. Barack Obama prevails, according to a Brookings Institution report issued on Wednesday.

In addition, the report by Russell Wheeler at Brookings, predicts that in four years of an Obama presidency, his appointments could shift Republican dominance on 10 of 11 circuits, to give Democratic appointees a majority in seven circuit courts. Currently, of the 11 circuit courts, only the 9th U.S. Circuit Court of Appeals has a slight majority of Democrat-appointed judges.

The balance of appointments could put solid Democratic majorities under Obama on the 2nd, the 3rd and the notoriously conservative 4th Circuit, which currently has four vacancies. It would add to the existing Democratic-appointed majorities in the liberal 9th Circuit.

Obama appointees would tip another four courts, the 1st, 7th, 11th and D.C. circuits to slight Democratic-majority appointments.

I didn't see a copy of the report on the Brookings website, but I will post a link when it's available.

theobromophile (www):
The issue that I have - and I think a lot of people have - is that Democrats tend to nominate liberals, but Republicans (through accident or design) have nominated judicial conservatives as well as moderates and those who have become rather liberal. Party of nomination therefore becomes a very poor proxy for determining the dominant judicial philosophy in the courts.
10.24.2008 3:33pm
Dave N (mail):
I am not sure of the other circuits, but the 9th Circuit currently only has one vacancy (that of Senior Judge Stephen Trott).

Of the active judges on the court, 3 are Carter appointees, 2 are Reagan appointees, 2 are Bush41 appointees, 14 are Clinton appointees, and 6 are Bush43 appointees.

While Democratic appointees outnumber Republican appointees (among active members) by a 17-10 margin (and Trott's seat is also "Republican"), and while some of the 10 appointees will be replaced during an Obama Presidency, I don't think it will shift the court that much to the left.
10.24.2008 3:43pm
frankcross (mail):
Theo, that's completely wrong at this level. On the circuit courts, the Dem voting pattern is the one that's moderate, and the recent Republican appointees have been very consistently conservative. Based on their votes.
10.24.2008 3:43pm
MJH21 (mail):
If Obama does win, but the Dems do not have a 60 vote majority in the Senate, I will be one of those conservatives who will retain the principled stand that I took during the judicial confirmation wars from 2003-2006: That the nominees deserve up or down votes and not to be filibustered. I will not like to see the courts packed with left-leaning judges (assuming that is what Obama and a Dem majority would be inclined to do), but I will not go back on the arguments that I and many other conservatives made about the President's prerogative, the proper role of the majority, and illegitimacy of the filibuster, just because I don't like the results when it's not my presidential pick doing the appointing.

I wonder if there will be a complete 180 on this issue with the parties: the Dems arguing for up or down votes and the Repubs threatening filibusters. If so, I will be even more disillusioned with the Repub Party - I'd like to think we are more principled than that.
10.24.2008 3:45pm
Kalamazoo:
I'm not going to bother reading the report, but why does it keep refering to "11 circuit courts." Apparently the authors are at least aware of the DC Circuit (see last paragraph); surely some intern could've told them that with DC and the Fed Circuit, there are actually 13.
10.24.2008 3:46pm
josh:
Theo

Not sure that's right. At least not according to Sunstein's study.

Criticisms of the study are addressed here: .

Certainly, though, the study at minimum casts some doubt in the traditional meme of "liberal" judicial activism.
10.24.2008 4:04pm
josh:
ugh

i really can't figure out the whole "insert a link" thing.

find them on google.
10.24.2008 4:05pm
DangerMouse:
I will be one of those conservatives who will retain the principled stand that I took during the judicial confirmation wars from 2003-2006: That the nominees deserve up or down votes and not to be filibustered.

You have to realize that you're being played. They don't give a crap about voting on nominees. All they care about is power. Why you should sacrifice the future of this country, and hold it hostage to liberals who want to redistribute wealth and make infanticide a national policy, is beyond me.

There comes a point in time where things matter more than voting on every nominee. Also, to be perfectly blunt: it doesn't work. You can't negotiate in good faith with a mugger. Same with the Dems. They don't care about voting on every nominee. The end result will be that all of Obama's nominees are voted on, and when the next Republican gets in office, none of theirs will be voted on.
10.24.2008 4:06pm
theobromophile (www):
You insert a link either by highlighting the word you want to be hyperlinked, clicking "link", and, if there is a pop-up box, putting the link in there. Remember to highlight a word. If there is no pop-up box because your browser gets cranky, you have to insert the link between the quotes that you'll find in your comment.

When in doubt, just paste the entire thing in. Looks ugly, but it works.

(I'm posting this because it seems as if a fair number of people have link issues.)

Now, onto the substantive issue. I presume you meant to link to this article by Sunstein. I'm skimming it, and will read it more fully later.

I'm not sure that it refutes my point, which is that only conservatives put conservatives on the bench, but conservatives sometimes put moderates or liberals on the bench. I don't think anyone is really going to point to Democrat-appointed judges who are judicial conservatives.
10.24.2008 4:31pm
MJH21 (mail):
DM,

DM,

I just don't agree with this "We have to be unprincipled because the other side has no principles" line of argument. I think that the net result of the party in control of the Senate and the WH is that that party gets to put judges on the bench. We can vote against them, we can make it a campaign issue, but what conservatives should not do is say majority rule takes a back seat under our constitutional structure when we're not the lucky guys and gals in the majority.

Your's is the same kind of thinking that led to the do nothing (with the great exception of welfare reform) Republican majorities from 1994-2006: Don't adhere to principles that got you there in the first place; play the game better than the other guys (or at least to a standstill).

I think it's not only craven and cynical, it's ultimately ineffective.
10.24.2008 4:34pm
Hans Bader (mail):
The fourth circuit isn't "notoriously conservative," as the NLJ claims.

It's now moderately-liberal.

To appease liberals, Bush appointed to the Fourth Circuit one liberal (Roger Gregory) and two moderates (Allyson Duncan and Dennis Shedd). (Shedd was expected to be conservative, but turned out to be a moderate).

In exchange, he expected Democrats to confirm his conservative nominees.

But they blocked them all.

That, coupled with the death of elderly conservatives on the Fourth Circuit, made it moderately liberal.
10.24.2008 4:40pm
eyesay:
D'Mouse, Well, there you go again, confusing a blastocyst with an infant. Also, the great redistribution of wealth has been been upward under conservative Republican leadership. We now have greater concentration of wealth than at any time since the age of the Robber Barons, the top 1% now own fully 50% of everything. There is class warfare in the United States, and it is practiced as mega-rich corporate plutocrats against everyone else.
10.24.2008 4:58pm
byomtov (mail):
To appease liberals, Bush appointed to the Fourth Circuit one liberal (Roger Gregory) and two moderates (Allyson Duncan and Dennis Shedd). (Shedd was expected to be conservative, but turned out to be a moderate).

In exchange, he expected Democrats to confirm his conservative nominees.

But they blocked them all.


Excuse me, but assuming your descriptions are correct, isn't it more accurate to say he appointed one liberal (Gregory), one moderate (Duncan) and one conservative (Shedd)? That Shedd turned to be moderate (again relying on your description) was a surprise, you tell us. He "was expected to be a conservative."

But then the Democrats didn't block all the conservatives, since they didn't block Shedd.
10.24.2008 5:33pm
Oren:

If Obama does win, but the Dems do not have a 60 vote majority in the Senate, I will be one of those conservatives who will retain the principled stand that I took during the judicial confirmation wars from 2003-2006: That the nominees deserve up or down votes and not to be filibustered.

Ironically, I will be sticking to my argument that supermajority confirmation of judicial nominees is good tool to keep the courts moderate. The opposition should filibuster nominees whose views are way out of the mainstream. I don't want Obama-selected extremists any more than I want Bush-selected extremists.

eyesay, I think the majority of us repeat-commenters have just plain stopped responding to DM's constant abortion-baiting. The man (I assume) has a wonderful tendency to connect everything to his own favorite issue.
10.24.2008 5:49pm
Suzy (mail):
How much influence does the foot-dragging on confirmation of judges have on the present situation? In other words, would some of these vacancies have been filled already by Bush, had Congress chosen to act more quickly? I think that's a terrible situation, because it just encourages retaliation forever between the two camps, until someone is President long enough to wait them out, or has enough power in Congress to force things through. I do think it's good to have some provision for discussion and negotiation, but at some point it's only fair that these things come up for a straight vote, whether one "likes" the results or not!
10.24.2008 6:23pm
Oren:

We can vote against them, we can make it a campaign issue, but what conservatives should not do is say majority rule takes a back seat under our constitutional structure when we're not the lucky guys and gals in the majority.

Will you at least admit that the contrary position (supermajority confirmation under Senate rule, as they exist right now) is OK if it's consistent, or, in your opinion, does the Constitution mandate confirmation by up-or-down vote?
10.24.2008 6:24pm
Oren:

In other words, would some of these vacancies have been filled already by Bush, had Congress chosen to act more quickly?

Bush would have had less vacancies if the Senate Repubs hadn't held up Clinton's nominees in committee. We can play this game forever ...

IMO, the more incentive the Pres. has to nominate moderates, the better. It should not be hard for mainstream judges to get the support of 75 Senators (yes, I know it's 60 to cloture).
10.24.2008 6:33pm
DangerMouse:
I don't want Obama-selected extremists any more than I want Bush-selected extremists.

Notwithstanding your opposition to my abortion-baiting, you would oppose a judicial candidate who thought that an infant that survived a botched abortion could be legally killed under the doctrine of Roe, because the intent of the woman was to not be a mother?

Good to hear. Obama apparently disagrees with you, as he voted to deny protection to such infants.
10.24.2008 6:38pm
Oren:
Very well parried, sir.

The question is a bit loaded because I'm not sure what you meant by "survived". Since viability starts at about 24 weeks, (earliest recorded surviving premie: 21 weeks, 5 days) so we are already talking about a 3rd-trimester abortion which should, itself, be illegal except for very serious health concerns.

Unless, of course, we are talking about situation in which the premie, even if it were not meant to be aborted, would have no chance whatsoever of surviving outside the womb (e.g. 20 weeks). In that case, you are baiting me into supporting a bill that expressly requires the provision of medical care that will prolong a life that has no chance of surviving even into infancy even under the best conditions.

Here's the rule I'm proposing -- no elective abortions after premature-birth-measured viability (currently ~24 weeks) and therefore none of this stupid "problem". Conversely, delays caused by the dilatory tactics of abortion opponents expressly don't count towards this time limit.
10.24.2008 8:54pm
EvilDave (mail):

I just don't agree with this "We have to be unprincipled because the other side has no principles" line of argument.


Well then you are an idiot. You haven't figured out that we are in a cold civil war?
Maybe the death threat painted on Sen. Coleman's house (R-MN) may have been a clue.

The Republicans play by the rules.
The Democrats play to win.


The Democrats have long ago figured out that what they can't get passed by a free democratic vote, they can shove down our throats if they get 5 Philosopher-Kings in black robes to agree with them.
They don't care about America or "the rules"; they care about power.
The Grachi brothers' bodies are in the Tiber.
10.25.2008 12:15am