Bush's Nominees Likely to Put Stamp on Circuits

Republican appointees dominate 10 of 13 federal appellate courts nationally and will almost certainly hold majorities in all but the West’s 9th U.S. Circuit Court of Appeals by the end of President Bush’s tenure. The circuit courts decide roughly 60,000 cases a year, compared with the U.S. Supreme Court’s fewer than 100, making circuits the last stop for the majority of litigants in the United States. That allows intermediate appeals courts to define the law on a majority of evolving legal questions. “The shrinking Supreme Court docket, the tiny number of cases taken, that’s why the stakes are perceived to be so high” in the confirmation of appellate judges, said Carl Tobias, professor at the University of Richmond School of Law in Virginia. Republican appointees now make up 60 percent of all the active circuit judges, with 94 Republican and 68 Democratic appointees, according to Senate Judiciary Committee figures. That will rise to 85 percent if all of Bush’s pending circuit court nominees win confirmation. It is a dramatic shift from just four years ago, when the nation’s federal court judges were roughly equally divided between Republican and Democratic appointments. In six circuits, Republican appointees have a 2-to-1 advantage over Democratic appointees: the 1st, 4th, 5th, 7th, 8th and federal circuits, the last of which is a specialized court hearing largely patent appeals. This increases the odds that Republican-appointed jurists will dominate the three-judge panels selected to hear appeals. In addition, they would control the voting in en banc reviews. As conservatives cheer the current trend and liberals wring their hands, the confirmation battles become increasingly contentious, and that is having a profound effect on the courts. For example, the Judicial Conference of the United States, the court’s policymaking body, recently recommended that Congress expand the judiciary by 68 judgeships, the first significant increase in 20 years. U.S. District Judge Susan Illston, in San Francisco, worked on the committee assessing where judges are needed. She said the numbers come from a system of weighting cases based on the complexity or time needed to prepare. In New York and Northern California, complex patent and intellectual property cases, as well as white-collar criminal cases, dominate judges’ time, she said. In South Florida, drug importation has strained court capacity. In the 9th and 2nd circuits, a flood of immigration appeals “are killing them,” she said. But if senators can’t agree on confirming current nominees, there seems little hope of increasing the size of the judiciary, according to Elliot Slotnick, a political science professor at Ohio State University who studies the federal judiciary. The confirmation process is so polarized, so slowed down, said professor Arthur Hellman of the University of Pittsburgh School of Law, that he wonders whether the Senate would even be capable of filling the 68 additional vacancies. In the 6th Circuit, Senior Judge Damon Keith has the dubious distinction of being the judge whose seat has been open the longest in the country. He took senior status a decade ago, creating a vacancy on the court, and, still, no one has been confirmed to fill it. The 6th Circuit, which covers Michigan, Ohio, Kentucky and Tennessee, stands equally divided with six Republican and six Democrat appointees, but four vacancies, and a stalemate over filling them. Michigan’s two Democratic senators, Carl Levin and Debbie Stabenow, refuse to support hearings for the four Bush nominees because Republicans denied two Clinton nominees hearings in the 1990s. So the seats remain open, with the remaining judges picking up the slack. Tobias said, “I don’t see how they will break this logjam unless it is part of a global agreement.” He said the Republicans could have given one of Clinton’s nominees a spot, but that was before Bush named the four current nominees. Now there is no room for compromise. And there’s a problem for the 9th Circuit: Republicans introduced two bills in the House to split the circuit, the largest circuit in the nation and the one most dominated by Democrat appointees. James Sensenbrenner, R-Wis., chairman of the House Judiciary Committee, told the Judicial Conference earlier this month, “It is not a question of if the 9th will be split, but when.” Sensenbrenner insisted that a split is not to punish judges for their opinions or dilute the court’s effect. He also said that if the bill to expand the judiciary were introduced, he would tie it to legislation requiring a split of the 9th Circuit, something opposed by a majority of that court’s judges, according to Hellman. Ninth Circuit Chief Judge Mary Schroeder, a long-time opponent of splitting the court, told a federal bar luncheon last week, “My mind is not closed to a discussion of restructuring the circuit, but this is not the time for it.” Schroeder also noted that it has been four years since a 9th Circuit panel issued its much-criticized decision declaring that schoolchildren cannot be forced to say “under God” in the Pledge of Allegiance. “I wanted to point out, it has been four years and the Republic and the 9th Circuit are still standing,” she said. In a slap at the circuit’s internal processes, a House bill orders the 9th to abandon its practice of allowing just 11 judges to sit on en banc panels. Instead the proposal would mandate full-court en banc review — all 28 active judges when the court is at full strength. SHARP DIVISIONS The sharp philosophical divisions within the circuit courts can have profound effects on cases. Last year, an 11th Circuit panel voted, 2-1, to uphold a Florida law that banned homosexuals from adopting children, although it did not bar them from being foster parents. A request for en banc reconsideration ended in a 6-6 tie, allowing the original ruling to stand without review. Bush’s controversial recess appointee, Judge William H. Pryor Jr., cast the deciding vote in Lofton v. Sec. of Dept. of Children & Family Serv., 377 F.3d 1275 (2004). “If he hadn’t been the temporary recess appointment, the vote would have been 6-5 to hear the case,” said Seth Rosenthal, legal director of the Alliance for Justice in Washington, a liberal watchdog group. “The result might have been the same but at least it would have been heard.” In the 6th Circuit, an en banc appeals review upheld the constitutionality of the University of Michigan’s undergraduate admissions policy of giving preference points to minority applicants in 2002. The position prevailed with a one-vote margin on the court at a time that it had four vacancies and was split with six Democratic and six Republican appointees. Grutter v. Bollinger, 288 F.3d 732 (2002). The Supreme Court, in a 5-4 vote, later upheld that decision, but it points out how a narrow margin of victory may be altered with only a few new judges on the court. Although political party affiliation may suggest judicial philosophy, it does not always provide a reliable indication of judicial voting. In the recent uproar over pleas to reinsert the feeding tube for brain-damaged Terri Schiavo, the 11th Circuit’s 6-5 Republican-appointed majority nevertheless voted 10-2 at one point to reject her parents’ request. “I think there may have been some exercise of judicial independence” in the vote, said Tobias. ‘NUCLEAR OPTION’ Although Bush has had 204 judges confirmed so far, 34 of them appellate judges, he has also had 10 blocked by filibuster. When the Senate returns from recess next month, a showdown looms over a possible Republican rule change, dubbed the “nuclear option,” to end the Democrats’ ability to block judicial confirmation through filibuster. The first nominee to run the filibuster gauntlet will most likely be William Myers III of Las Vegas, a nominee for one of four vacancies on the 9th Circuit. Republicans may be reticent to push the nuclear button, according to Slotnick. “It may come back to bite them,” he said. The filibuster provides cover for moderate Republicans who may not want to face a vote on the merits of some of the most extreme nominees, he said. Beyond Myers, one of the biggest battles may be in the D.C. Circuit, which is considered by many to be second only to the Supreme Court in significance because that court hears appeals challenging government regulations and a wide array of conduct by federal agencies. Conservative California Supreme Court Justice Janice Rogers Brown has drawn plenty of fire from liberals because her nomination to the D.C. Circuit is seen as a potential tryout for the Supreme Court. LEGAL LEGACY The legal legacy of a single president’s appointments can resonate for decades. Hellman said that each circuit has its own separate trajectory based, in part, on the fortuities of vacancies. “The fate of the 9th Circuit was shaped for 20 years by the fact that President Carter got 15 appointments, including 10 new judgeships, on the court. There are only three [active Carter appointees] left, but they have affected the 9th and made it what it is,” he said. As a consequence of the large Carter contingent, Presidents Ronald Reagan and George H.W. Bush had relatively few appointments to the 9th Circuit. By contrast, Hellman points to the 8th Circuit, which is really a George W. Bush court. The circuit has nine Republican appointees, six of them appointed by the current President Bush, and just two Democrat appointees. Clinton left his mark on the 2nd Circuit, naming seven of the court’s 13 judges, and the 9th Circuit, where he filled 14 of the court’s 28 positions. “The behavior of Clinton judges, right-wing rhetoric notwithstanding, they are the most conservative of the Democrats,” said Slotnick. “They look more like Gerald Ford nominees” in voting patterns, he said. Bush appointments will create a more conservative bench than in the past, he added. “The Republicans have done a better job of maximizing their philosophy on the bench. They cared about ideology,” he said. Carter and Clinton cared more about the composition of the courts, appointing more women and minorities, he said. Slotnick attributes much of the conflict now in the Senate to the changes that Carter brought about. Carter set up nominating committees to look for diverse candidates, but senators saw it as an affront to their power, he said. Carter also issued an executive order that nominees must have a demonstrated commitment to equal justice. “Conservatives saw that as a euphemism for liberal activist,” he said. There was also a struggle between the U.S. Department of Justice and the White House for control of the appointments process. Starting with Reagan and afterward, Slotnick said, the White House took over control of judicial appointments from Justice, which meant that political judgment came increasingly into play. The White House influence over judicial selection has only grown since Bush arrived, he said.