The philosophical makeup of the U.S. Court of Appeals for the Second Circuit is unlikely to undergo meaningful change with Barack Obama’s elevation to the White House.
Although there is the potential for five vacancies on the Second Circuit in 2009 because some judges may opt to take senior status, four of those eligible were appointed by President Clinton, so the current balance of six judges who were named by Democrats and six by Republicans will not change significantly.
Attorneys and scholars who follow the court closely say there are other factors that keep the court from becoming a partisan battleground, including the normal tendency of both parties to appoint judges of relatively centrist views in New York.
Three circuits – the Second, Third and Ninth – are made up of 50 percent or fewer Democratic appointees. Though President George W. Bush has had fewer opportunities to fill vacancies than his predecessor, he still has been able to drive the percentage of Republican appointees to high levels in several other circuits.
Russell Wheeler of the Brookings Institution recently released projections on the potential to change the composition of the courts of appeals through anticipated vacancies. Nationwide, Mr. Wheeler gives Mr. Obama a reasonable chance of increasing the number of Democratic appointees to 58 percent from 42 percent.
But the Second Circuit is unlikely to be part of that change because of the court’s demographics, whereby a Democratic president will largely be filling Democratic vacancies.
Mr. Wheeler also said the Second Circuit is “in a different boat than say, the Sixth Circuit, which by any measure, is bitterly divided.”
Mr. Wheeler and others also note the circuit’s unique tradition as the nation’s leading commercial court.
John C. Coffee, a professor at Columbia Law School and a columnist for the Law Journal, is a close observer of the Second Circuit’s rulings in securities cases and one who sees the court as less ideological than some of the other 12 circuits.
“I think the Second Circuit in most decisions has been very much following the middle course,” he said. “They have made it marginally more difficult to either certify a class or bring a securities class action but that is against a national backdrop where other circuits have strongly discouraged them.”
Mr. Coffee also noted that it is common to see appointees from opposite parties agree on the law or the facts or both.
“I don’t think they can be pigeonholed,” he said.
Ira Feinberg, who was the chief appellate attorney with the Southern District U.S. Attorney’s Office for eight years before moving to Hogan & Hartson, said both the appointments to the court and its case law have been steady.
“The appointments to the Second Circuit have been pretty mainstream, moderate to conservative appointments, but I don’t think there has been an ideological bias in terms of criminal law,” Mr. Feinberg said. “I don’t perceive the court has shown any movement on particular issues, at least in the criminal area, that would be the result of the Bush appointments.”
The odds of a political shift to the left on the court, if one happens at all, depend on whether the eligible judges elect to take senior status. All the judges contacted on the possibility of going senior declined to comment.
“We have had no formal indication from any of those judges who will be eligible in the next administration,” said Circuit Executive Karen Milton.
Judges say the decision to take senior status is a personal one that includes consideration of financial benefits, family situation and the demands of the job, including the work load they are willing to take on.
There are actually six judges who are eligible for senior status but one, Chief Judge Dennis Jacobs, has said he will stay as an active judge for the foreseeable future. Judge Jacobs was appointed directly to the Second Circuit by President George H.W. Bush.
Judge Barrington D. Parker, nominated by President George W. Bush and commissioned in October 2001, is the only other Republican nominee eligible to go senior.
The four eligible Clinton appointees are Judges Guido Calabresi, Jose Cabranes, Rosemary Pooler and Robert Sack. Judges Cabranes and Pooler became eligible in 2005 and 2006, respectively, and, like their colleagues, have given no indication of stepping down.
The gap beyond these six judges is significant, with no one on the court eligible to take senior status until 2016.
Last month, Mr. Bush nominated Southern District Judge Loretta Preska to fill the 13th and last active slot on the court. Judge Preska has yet to have a hearing before the Senate Judiciary Committee and, with the committee only scheduled to meet briefly the week of Nov. 17, it is possible she will not get a hearing and her nomination will lapse. But Senator Charles Schumer could revive the nomination with the acquiescence of the White House in January.
Along with Judge Parker, Mr. Bush has placed on the court Judges Reena Raggi, Richard Wesley, Peter Hall and Debra Ann Livingston. Along with Judges Calabresi, Cabranes, Pooler and Sack, Mr. Clinton named Judges Sonia Sotomayor and Robert Katzmann to the court.
Attorneys say that whatever philosophical differences exist among members of the court – Chief Judge Jacobs is a member of the Federalist Society and Judge Calabresi is unabashedly liberal – they are muted.
A contributing factor is the nature of federal appellate courts and how they work in New York, where three-judge panels of shifting composition are rarely in a position to break out and make new law. The panels often have judges from other circuits or district courts, and the Second Circuit has a long tradition of senior judges playing a busy role, with some maintaining a case load equal to that of their active time on the bench.
The balance among active judges is matched by a balance among judges on senior status, where there are five Democratic appointees and four Republican appointees. Conceivably, however, active Clinton appointee circuit judges who elect to take senior status could exert disproportionate influence by choosing to continue with a full work load, but that assumes a sharp political divide in the first place.
“The circuit is not an ideological court, most of our cases, indeed the overwhelming majority have no classifiable political content,” Judge Jacobs said.
And even in the rare case when the court sits en banc, a situation that might be expected to reveal political fault-lines, the ultimate decisions do not break down along party lines because the issues are complicated or might involve no more than a highly technical question of statutory construction.
Christopher Dunn of the New York Civil Liberties Union, another Law Journal columnist, has participated in several challenges to the Bush administration, including national security, the targeting of Muslims at the border for extended detention, and a range of First Amendment issues.
He said that, at a minimum, the atmosphere at the circuit has changed.
“Though we have not seen the Second Circuit as a partisan court, the Bush administration has certainly created a far more conservative judicial climate in general,” he said. “We have seen that reflected in Second Circuit rulings, particularly in the types of controversial cases we often bring.”
But Mr. Dunn also cautioned, “As a general rule, it’s more difficult in courts of appeals to identify partisan influence because of the panel system.”
Judge Jacobs said the panel system tends to tamp down political differences, noting that it “works best when members listen to each other and arrive at a common approach.”
He added, “When you work that way, political ideology is a hindrance. When we split, as inevitably happens sometimes, the fault line can’t be predicted on the basis of the political party of the president who appointed us.”