Wednesday, 26 November 2008

The Election's Impact on the Federal Judiciary

From the Standdown blog :

The Election's Impact on the Federal Judiciary

National Law Journal has a web-only article, "Election's outcome could have seismic effect on federal courts," reported by Pamela MacLean.

Republican Presidents have appointed more than half of the current 179 federal appellate judges, but that could rise dramatically to 74% if Senator John McCain wins the presidency, or give Democrats a 56% majority in appointments if Senator 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 Democrat 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 Democrat majorities under Obama on the 2d, the 3d and the notoriously conservative 4th Circuit, which currently has four vacancies. It would add to the existing Democrat-appointed majorities in the liberal 9th Circuit.

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

"I think this shows in striking form what it means for the courts of appeals, depending on who is elected," said Carl Tobias, law professor at the University of Richmond School of Law, who tracks judicial appointments.

"For the 4th Circuit [an Obama victory] would be a substantial change, because it is the most reliably conservative court in the nation," he said.

In the 2d Circuit, it will be important because the New York-based court hears so many of the nation's most significant business cases, Tobias said.

Wheeler cautioned that not all presidential appointees are of the same party or philosophically aligned with the appointing president, but may represent political deal making.

The complete Brookings Institution report, "What Will the Presidential Election Mean for the U. S. Courts of Appeals? Courts, Judges, U.S. Judiciary, Presidential Appointments, is by Russell Wheeler, a visiting fellow at Brookings. Here's an excerpt from the beginning of the report:

There’s been a lot of speculation about how a President McCain or Obama might affect the composition of the United States Supreme Court. The conventional wisdom has it that any seats that become vacant in the next four years are likely to be from those occupied by the Court’s liberal bloc. With the Court closely divided, McCain appointees would fortify the conservative bloc, while Obama appointees would maintain the status quo. Of course, speculation about vacancies is just that, and predictions of how a new justice might behave are risky.

But there’s more to the federal judiciary than the Supreme Court. Presidents appoint judges to the 678-judge district courts and 179-judge courts of appeals. The courts of appeals, one for each of the 13 federal judicial circuits, terminated 63,000 cases last year, making them the courts of last resort except for those federal litigants granted review on the Supreme Court’s annual docket of less than 100 cases. How might a President McCain or Obama affect the composition of the courts of appeals? A definitive answer is impossible, but some reasonable estimates are not.

Before estimating, though, three caveats: First, most judges appointed by Democratic presidents are at least nominal Democrats, but not all are; the same goes for Republican appointees. Second, while Democratic and Republican appointees display different decisional tendencies, especially in such hot-button areas as environmental regulations, overall the differences in their voting have been relatively narrow, in the 10 to 15 percent range for cases that might have some ideological dimension.

Third, a court of appeals three-judge panel may consist of judges other than those serving full time in one of the 179-statutorily created judgeships. Panels may include semi-retired “senior status” circuit judges and district judges assigned to sit temporarily on the courts of appeals. So, even if we could predict with precision the make up of the full-time statutorily created circuit judgeships, we would not know the precise make up of the appellate judiciary on a daily basis.

Still, the composition of the 179 full-time circuit judges gives a fairly good picture of the appellate judiciary.

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