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President George W. Bush, it seemed last week, was trying to make everybody happy when he announced his first picks for the federal bench. He appointed two Democratic holdovers, both African-Americans. And he pulled back controversial nominees in California, holding out an olive branch to Senate Democrats. But beneath the why-can’t-we-be-friends bipartisan rhetoric, the Bush White House was doing what it has done best in its young life: Surgically placing the people it wants in the positions where it wants them. The majority of the president’s first group of judicial nominees — all of whom would sit on the federal appellate courts — could ultimately help to shift the balance of power in some key circuit courts across the country, particularly in Washington, D.C. “The people calling the shots know what they are doing,” says Herman Schwartz, a law professor at American University. “This is not a new administration. These are old pros. They know how to play this game.” That “game” involves placing judges in spots where they can make an immediate impact, particularly on appellate courts where a handful of judges can tilt the direction of the institution in a more conservative direction. And, despite the White House’s insistence last week that it was offering up a smorgasbord of 11 judicial moderates that featured something for everyone — judges who are conservative and Clintonian, white, black, and Hispanic — the administration will have its most ideologically desirable judges in the precise places where they can produce immediate results. “They are being strategic in terms of the seats they are trying to fill,” says Marcia Kuntz, director of the Alliance for Justice’s Judicial Selection Project. Not that the White House will admit to doing so. An administration official says there was no goal in mind with regard to the first batch of judicial nominees, who would fill about one-third of the 31 current vacancies on the federal appeals courts. Instead, the administration says that these judges were chosen because they were the first ones to complete the extensive vetting process. “It’s really as simple as these were the ones who were ready first,” the official says. “The president would like to fill all 31 vacancies immediately.” Edwin Meese, the former Reagan administration attorney general who played a prominent role in seeding the federal judiciary with conservative jurists in the early 1980s, also says his White House didn’t attempt to fill specific seats with conservative appointments. “We just tried to get the best possible judges,” Meese says. “We were never looking for a conservative tilt for the courts.” Still, if it wasn’t by design, then the Bush administration has gathered a remarkably serendipitous collection of jurists for its first round of nominees. Two judges who are expected to be conservatives, Miguel Estrada and John Roberts Jr., would be added to the U.S. Court of Appeals for the D.C. Circuit and shift that court from its current 5-4 Republican majority to a more dramatic 7-4 tilt. The court is crucial for the administration, as the majority of challenges to new federal regulations would be brought there. “That’s one where you frequently see voting in allegiance with party affiliation,” says Arthur Hellman, a law professor at the University of Pittsburgh who studies the federal courts. “That’s where two Republican appointees could solidify control of that court. This administration will put into place some regulations that will be challenged, and the industry and conservative groups will find the D.C. Circuit a more attractive forum.” David Vladeck, who litigates regulatory issues for the consumer advocacy group Public Citizen, says the D.C. Circuit is the “circuit of choice” for federal agency review cases. “Second to the Supreme Court, the D.C. Circuit is the most important court in the country,” Vladeck says. Vladeck adds that the Bush administration’s promised efforts at deregulation may be challenged in the circuit more often than any new federal regs. “The court was hostile to deregulation efforts in the early days of the Reagan era,” he says. “We will see if this court will be equally hostile. But it is a different court.” And Jonathan Emord, a D.C. lawyer who frequently argues in the appeals court against restrictions on commercial speech, cautions that appointments aren’t always predictable. “The labels are meaningless in large measure,” Emord says. “I’m a realist. I understand if you select someone, they are likely to chart an independent course.” TIPPING THE BALANCE The White House’s wish to add Ohio Supreme Court Justice Deborah Cook and Columbus, Ohio, lawyer Jeffrey Sutton to the 6th Circuit bench could have a profound effect on that court. Currently, the 6th Circuit is split down the middle, with seven Republican and seven Democratic appointees. The two new judges would create a 9-7 edge, with three vacancies yet unfilled. Two more vacancies could come later in the year. “Two people would tip the balance there,” says Kuntz of the Alliance for Justice. The 6th Circuit is well known for tackling religious expression cases. It is also expected to hear a high-profile affirmative action case involving the use of racial preferences for admission to the University of Michigan Law School later this year. By that token, Bush’s apparent political surrender last week in holding back the nominations of Rep. Christopher Cox, R-Calif., and Los Angeles Judge Carolyn Kuhl to the 9th Circuit didn’t cost him much. The 9th Circuit, known as the most independent and idiosyncratic federal appeals court, is packed with young Clinton appointees. Fourteen of its 28 judges were appointed in the last eight years, and with only three vacancies, there isn’t much that the White House can do to change the character of the court. (The White House says Cox and Kuhl remain under consideration for appointments to the 9th Circuit.) “If you are concerned about the direction of the courts of appeals, it makes sense to put your initial efforts into courts like the 6th Circuit and the D.C. Circuit where you can have some influence,” says Pittsburgh professor Hellman, “and not put a lot of political capital in the 9th, which is going to be what it is.” Moreover, Bush, while appearing to appease Democrats with his nomination of Roger Gregory to the 4th Circuit and Barrington Parker Jr. to the 2nd Circuit, lost little in doing so in terms of advancing a conservative judicial agenda. Gregory, who already sits on the court by virtue of his recess appointment by President Bill Clinton, could become a progressive voice drowned out by some of the most conservative jurists in the nation — and a court that will be made even more lopsided if Bush succeeds in getting North Carolina federal District Judge Terrence Boyle and South Carolina federal District Judge Dennis Shedd on the court. And Parker would join a 2nd Circuit bench already top-heavy with Clinton appointees, a court that a Bush White House can do little to impact in its time in office — and may not care if they can. The 2nd Circuit, based in New York, is better known for handling large commercial cases, not as a forum for engineering social policy. “Parker is a clever choice,” says Schwartz, the American University law professor. “He’s a Democrat, a Clinton appointee, a black. He’ll make no difference [on the court] whatsoever. And Gregory, he’s just a bone” to the Democrats. With regard to Bush’s other nominees, the selections of Texas Supreme Court Justice Priscilla Owen and New Orleans federal District Judge Edith Brown Clement would simply contribute to a solid 9-5 Republican majority in the 5th Circuit. And the addition of law professor Michael McConnell to the 10th Circuit will reinforce a single-judge majority on that court, giving Republicans a 7-5 advantage. In a surprise to some, Bush didn’t nominate anyone to fill either of the two vacancies on the 3rd Circuit. Political calculations may have come into play there, however. One of the vacancies comes from New Jersey, home to two Democratic senators. The other comes from Pennsylvania, home state of the notoriously independent Republican Sen. Arlen Specter.

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