The Supreme Court always rates as a campaign issue in presidential races, but what about the 13 U.S. Circuit Courts of Appeals -- the courts of last resort for all but a handful of the nation's cases?
At least one researcher is contemplating the landscape of the lower courts under a President McCain versus a President Obama. On President George W. Bush's watch, Republican appointees increased their stake by 15 percent, giving them a 100-to-65 judge majority on the federal courts of appeals.
In a presentation at the Brookings Institution earlier this month, visiting fellow Russell Wheeler said Republican-appointed circuit judges could widen their majority by another 18 percent -- 142 Republican appointees to 51 Democratic appointees -- by the end of the first term of a John McCain presidency.
If Barack Obama wins the election, by the end of his first term, Democrat-appointed judges could hold 112 spots, giving them a 58 percent to 42 percent majority.
The Republicans' advantage comes down to age, Wheeler said. Just as President Bill Clinton was able to capitalize on the wave of outgoing Reagan appointees, McCain could replace many of Clinton's judges, who are nearing retirement.
Admittedly, Wheeler's projections assume a lot. All judges who are now, or by 2011 will be, eligible to retire would have to do so; Congress would have to enact a bill expanding circuit judgeships by 14; and the president would have to fill all the vacancies -- a difficult proposition if the White House and the Senate are run by opposing parties.
