A ‘HUGE’ JUDICIAL OPPORTUNITY…. The results hardly ever generate any attention, but George W. Bush’s impact on the federal judiciary has been fairly dramatic. The Washington Post’s R. Jeffrey Smith had a front-page item today on the nation’s federal appellate courts, where Bush’s “appointees and their liberal counterparts are waging often-bitter ideological battles.”
When Bush took office, seven of the 13 appellate courts had Republican-appointed majorities. Now, that number has increased to 10, with two more where Democratic appointees and GOP appointees are equal. Most importantly, in some circuits, if a randomly-selected three-judge panel includes two or more judges from a Democratic administration, Republican judges will insist that the entire appellate court hear the case (en banc) to ensure a conservative outcome. As one Democratic-appointed judge on the 6th Circuit noted, “Anytime two of us show up on a panel and they don’t like it, they yank it.”
With this in mind, Barack Obama has a unique opportunity to reshape the legal landscape.
The federal judiciary is on the verge of a major shift when President-elect Barack Obama’s nominees take control of several of the nation’s most important appellate courts, legal scholars and political activists say. With the Supreme Court’s conservative direction unlikely to change anytime soon, it is the lower courts — which dispense almost all federal justice — where Obama can assert his greatest influence.
The change will be most striking on the Richmond-based U.S. Court of Appeals for the 4th Circuit, long a conservative bastion and an influential voice on national security cases, where four vacancies will lead to a clear Democratic majority. Democrats are expected to soon gain a narrower plurality on the New York-based 2nd Circuit, vital for business and terrorism cases, a more even split on the influential D.C. appeals court and control of the 3rd Circuit, which covers Pennsylvania and New Jersey.
Although Republican control will probably persist on a majority of appellate courts for at least several years, some experts say that by the end of Obama’s term, he and the Democratic Congress will flip the 56 percent majority Republican nominees now exert over those highly influential bodies.
“Obama has a huge opportunity,” said Arthur Hellman, a University of Pittsburgh law professor who is an authority on federal courts. “In a very short time, significant segments of the appellate courts, which are the final authority in all but a tiny handful of cases, will be dominated by Democratic nominees.”
Senate Republicans are no doubt aware of this, and will almost certainly rely on every obstructionist tactic they can think of — and maybe even make up some new ones — to prevent/delay Obama’s judicial nominees. Sen. Jon Kyl of Arizona, the second highest ranking Republican in the chamber, has already publicly vowed to mount judicial filibusters, and his GOP colleagues are on the same page.
Remember when Republican senators hyperventilated about “up or down” votes on judges? They don’t.