Eric Haren, Jenner & Block
Courtesy of Jenner & Block LLP
After President Barack Obama wins confirmation of his first Supreme Court nominee, the Court will still lean conservative. And it will still decide only a handful of cases each year. The lower courts, in contrast, will have the final word in more than 99 percent of federal cases. These courts are up for grabs, and Obama's impact on them could be sweeping. Indeed, Obama may be able to completely reshape a conservative-dominated judiciary to one largely controlled by Democratic appointees -- even in a single term.
Conservatives hold sway on nearly all of the 12 federal appellate courts. For example, Republican appointees hold a 6-3 majority on the U.S. Court of Appeals for the D.C. Circuit -- the important court on which Chief Justice John Roberts Jr., Justice Antonin Scalia, Justice Clarence Thomas and Justice Ruth Bader Ginsburg sat before their elevations to the Supreme Court. Republican appointees also control the 5th Circuit (13-4), 6th Circuit (9-6) (counting Judge Helene White as a Democratic appointee), 7th Circuit (7-3), 8th Circuit (9-2), 10th Circuit (8-4), and 11th Circuit (7-4). In total, Republican appointees have an 88-61 advantage on the appellate courts.
By filling existing vacancies, the president can change that state of affairs very quickly. There are now 18 vacancies on the appellate courts. Filling them could have a serious impact. For example, the 4th Circuit -- long regarded as the most conservative federal appeals court in the country -- would shift immediately, from a 5-5 split (counting Judge Roger Gregory as a Democratic appointee) to a 10-5 majority of Democratic appointees.
Moreover, many more judgeships are likely to swing soon, as active judges assume so-called "senior status" and the president nominates their replacements. A senior judge continues to hear cases (sometimes with a smaller workload) and retain his or her salary. To assume senior status: (1) a judge must be at least 65 years old and have served at least 10 years on the bench; and (2) the sum of the judge's age and years on the bench must be at least 80.
Applying this formula to the federal appellate courts illustrates the potential for a sweeping change. In Obama's first term, 50 appellate judges may assume senior status. Thirty-five of those were appointed by Republican presidents. Beginning with the 61 current Democratic appointees and adding the 18 current vacancies and the 35 potential vacancies produced by Republican-appointed judges assuming senior status, Democratic appointees may occupy 114 of the 167 appellate judgeships (not counting the specialized U.S. Court of Appeals for the Federal Circuit) after Obama's first term. That number could increase to 131 during a potential second Obama term.
The impact on individual courts would be striking. For example, Democratic appointees might control 11 seats on the 17-judge 5th Circuit. That staunchly conservative court now only has four Democratic appointees. This pattern is consistent across nearly every circuit: Democratic appointees could have majorities on the 1st Circuit (5-1), 2nd Circuit (9-4), 3rd Circuit (9-5), 4th Circuit (12-3), 6th Circuit (9-7), 7th Circuit (8-3), 9th Circuit (21-8), 10th Circuit (8-4), 11th Circuit (10-2) and D.C. Circuit (8-3) after only four years under Obama. The only exception -- the 8th Circuit -- might topple in a second Obama term.
Democratic appointees thus might form majorities -- in many cases, overwhelming majorities -- on every regional federal appellate court, especially if Obama serves two terms. A swing of this magnitude is likely to produce a judiciary that is substantially less conservative, even if the party of the nominating president is not a perfect predictor. It would be a serious change from where we stand today.
These numbers are not perfectly solid predictions. A judge's eligibility for senior status is not a guarantee of a vacant judgeship. But it is a good predictor. The data show that most judges take senior status almost immediately after becoming eligible. The average appellate judge takes senior status after only about 1 1/2years of eligibility. Nearly 65 percent of current living senior appellate judges assumed senior status almost immediately after becoming eligible; about 80 percent did so within two years and 86 percent did so within four years.
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When do we get our Scalia?
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