By the end of a four-year term, the Obama administration could expect to turn as many as eight of the nation’s 13 federal circuits from either slightly to solidly Democrat-appointed majorities. Currently, only the 9th U.S. Circuit Court of Appeals, which will have 29 judgeships, has a majority of Democrat- appointed judges.
The transition could shift the 1st, 2d, 3d, 4th, 7th 11th and D.C. circuits, with the 9th adding to its existing Democrat appointees. The Federal Circuit, which handles patent appeals, is likely to end up balanced equally with appointees from both major parties.
The most striking change could come soon after Obama takes office, with the selection of nominees to fill four existing vacancies on the staunchly conservative, 15-judge 4th Circuit.
Republican presidents have appointed eight of the 11 active judges now sitting on the court, although one of the eight was originally nominated by President Clinton and is philosophically liberal.
The court is significant as the seat of appeals for many of the national security and enemy combatant cases, and those involving the Pentagon and other federal agencies based in northern Virginia. And its judges have been contenders for elevation to the Supreme Court.
“That could be a sea change for appointments to that court,” said James Brosnahan, a nationally known civil litigator in Morrison & Forester’s San Francisco office and a staunch Obama supporter.
“That is the most law-and-order, conservative circuit in the country,” he said. “At the end of an Obama administration, it could look quite different,” Brosnahan said.
Federal appeals courts, with 179 judgeships, are often overlooked in the political rhetoric surrounding U.S. Supreme Court appointments. But the 13 appeals courts resolved more than 63,000 cases last year, while the Supreme Court considers fewer than 100 cases per year.
The vacancy numbers
When Obama takes over on Jan. 20, 2009, there will be 15 vacancies on the appellate bench nationally.
Yet that does not tell the whole story. A federal judgeship bill, proposed in April, would have added 12 new appellate seats and 43 trial court judgeships across the country, but the measure died amid partisan squabbling.
The added strength of Democrats, picking up at least six Senate seats in the next Congress, is likely to mean the measure will be resurrected and approved.
“Of all the federal appellate courts, 56% of the judges are Republican appointees,” said Ilya Shapiro, a senior fellow and editor of the Supreme Court Review for the Cato Institute, known for its libertarian, small-government philosophy. Nine of 13 circuits have slight or major dominance by Republican-appointed judges, he said.
“Over the next four years, he could sway all but one, the 5th Circuit,” Shapiro said.
This will mean that the 1st, 2d and 3d circuits, with a narrow dominance of Republican appointees, easily could switch to Democratic majorities early in Obama’s tenure, while others may take longer, according to Herman Schwartz, professor at American University Washington College of Law.
Obama could have an early impact in the 3d Circuit, which has two vacancies, said Carl Tobias, a University of Richmond School of Law professor.
The 6th Circuit has a 10-to-6 Republican majority of appointees, although one judge was a Clinton nominee appointed by President George W. Bush in a political deal. It makes a potential philosophical shift probable.
Other circuits, such as the New Orleans-based 5th, have more substantial Republican-appointed majorities.
“If Obama gets eight years in office, he could make a substantial difference on the courts,” Schwartz said.
It would not be unusual for him to move quickly to fill the seats.
“When President Bush came in, he immediately sent up 11 names to the Senate for confirmation,” Schwartz said.
Just who Obama’s candidates will be is less clear. He has said little during the campaign about judicial appointments, except that he wants judges with “empathy” for minorities, single mothers, gays and the handicapped.
“He’s looking for a federal Oprah, more than a judge,” said Shapiro. “The reason conservatives accuse liberals of activism is for trying to mete out equity rather than following the law,” he said.
“To my way of thinking, we have probably never had a president better qualified to make appointments to the court. He is a lawyer and constitutional law professor, and his wife is a lawyer,” said Cris Arguedas, a criminal defense lawyer at Arguedas, Cassman & Headley in Berkeley, Calif., who was head of Senator Barbara Boxer’s judicial appointments review committee in 1992.
“One thing we need to discover will be: Does he think appellate judges should have trial experience?,” she said.
Tobias suggested that Obama could reach back to Clinton nominees left without confirmation votes in the contentious Senate, pointing to 4th Circuit nominees such as U.S. District Judge James Beatty and Judge James Wynn, a state appellate judge in North Carolina. Both are African-American.
“I don’t think [Obama] is ideologically driven,” Brosnahan said. “He is a pragmatist and he will translate that to the judiciary. I think an Obama judiciary will be pragmatic, number one, and yes there will be a more diverse selection process.”
It is even likely that Obama may nominate a few Republicans, particularly for district court positions, which traditionally include consultation with home senators, Schwartz said.
“To put it bluntly, trial judges have to know something, circuit judges don’t,” he said. “Circuit judges spend time studying paper. It is cerebral. District judges have to run trials, handle difficult emotions and make sentencing decisions,” he said.
One thing that isn’t known is how Republicans will react. “Years ago, Senator Rick Santorum said he would filibuster any liberal nominee, but he is gone. The Republicans might try to filibuster,” but it remains an unknown, Schwartz said.
Arguedas expects to see merits appointments and plenty of applicants after eight years of Democrats waiting in the wings through a Republican administration for the chance to apply.