Today's Washington Post features a front-page article detailing the effect of President Bush's nominees on federal appellate courts, focusing on the U.S. Court of Appeals for the Sixth Circuit. It's an interesting piece, as is this companion article on the politics of judicial nominations going forward, but I worry that it might exaggerate the ideological or partisan divisions among appellate judges, even if only because it focuses on the unusually divided Sixth Circuit.
The heart of the article focuses on the Sixth Circuit, and it portrays a Court unusually riven along ideological lines, particularly on criminal justice issues. This perception of the Court is widespread (indeed, I've blogged extensively about it), but the article suggests at least some judges see it this way too. It even quotes one judge to that effect.
Under 6th Circuit rules, full court, or "en banc," hearings are allowed in order to ensure "uniformity of the court's decisions" when separate panels of three randomly appointed judges disagree, or when questions of "exceptional importance" are at stake. But some of the court's Democratic appointees allege that the Republican-appointed majority is grabbing and reversing cases whenever those judges disapprove of the social consequences of the Democratic appointees' rulings.The story also discusses the impact of Bush nominees on the appellate courts as a whole. After eight years of judicial appointments by George W. Bush, Republican nominees are the majority of judges on most Circuits. This is what one would expect after eight years of a GOP President (and Republican control of the White House for 20 of the last 28 years). I've written about the current balance of nominees on the federal appellate courts and the likely effect of Obama's Presidency here.
"Anytime two of us show up on a panel and they don't like it, they yank it," said one Democratic-appointed judge on the circuit, who spoke on the condition of anonymity to avoid directly provoking colleagues. . . .
Ideological trench warfare is frequently on display in the 6th Circuit's austere fourth-floor hearing room in the Potter Stewart Courthouse here, which shifted to Republican-appointee control in mid-2005. Rulings sling around words such as "absurd," "rash," "meritless," "Pollyannaish," "unconscionable," "careless," "overwrought" and "alarming" -- from jurists on each side, directed at the judgments of colleagues appointed by the other political party. Tensions between Democratic and Republican appointees have become so intense that they no longer regularly lunch together at the city's University Club.
I should note that the story contains one small error. It characterizes the Sixth Circuit's October en banc decision in Republican Party v. Brunner as a 9-6 decision decided along party lines, counting Judge Helene White, who was technically nominated by Bush, as a Democratic nominee as she had been a Clinton nomination to the Sixth Circuit and her nomination was part of a deal with Senate Democrats. Although some news outlets initially reported the decision as 9-5 or 9-6 (because, due to time pressures, the initial opinion was released before all of the judges had registered their vote or filed opinions), the decision was actually 10-6, and one Clinton appointee, Judge Ronald Gilman, voted with the majority. The Supreme Court subsequently overturned the en banc decision.