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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 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 2nd 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.
For example, President Bill Clinton appointed Judge Richard Tallman, a conservative Republican to the 9th Circuit, in exchange for Senate confirmation of other stalled nominations. And Judge Helene White, whose original nomination by Clinton died in the Senate, was appointed to the 6th Circuit by President George Bush in a deal with Democrats to release other nominees.
"Be careful not to assume that [judicial] appointments break along party lines," said Tobias. "History doesn't bear out that everyone votes on party lines with the president that appointed them," he said.
The 9th Circuit's Judge Alfred Goodwin, for example, a moderate conservative appointed by President Richard Nixon, famously wrote the opinion declaring the words "under God" unconstitutional in the Pledge of Allegiance.
Republican presidents have named 100 of the current 179 appellate judges, or 56 percent, while 64 judges, or 36 percent, were appointed by Democrats. The remaining 15 spots represent current vacancies or judges who have said they will step down by January for semi-retired "senior status."
A McCain victory would intensify the existing predominance of Republican appointments on several courts, tipping the last remaining circuit dominated by Democratic appointees, the 9th Circuit, to a Republican-appointed majority.
The Republican domination of appellate court appointments has risen since President George Bush took office in January 2001, when the courts were evenly divided with 76 appointees from each party, or 42 percent each, with 27 vacancies, according to the report.
Another factor that will affect how much McCain or Obama can shift the percentage of appointees will depend on how many judges from the opposite party retire or leave office.
During Clinton's eight years in office, 18 Democratic and 38 Republican appointees on circuit courts retired. That gave Clinton the opportunity to replace more Republican appointees with Democrats. By contrast, only one-quarter of Bush's 60 appointees replaced Democratic appointees.
Wheeler also predicted that the new president would garner an additional 13 circuit judges as part of a judgeship bill intended to increase the overall number of judges nationally. But the bill has failed to win approval and is unlikely to be taken up by the lame duck Congress, which will be focused on economic bailout measures.
Reintroducing the measure next year in the 111th Congress will mean the process starts from scratch and may take time to win approval, according to U.S. Senate Judiciary Committee staff.
