Obama To Shift Balance In Federal Courts

Washington Post: Democrat's Appointments Are Expected To Reshape Legal Landscape

(Washingtonpost.com)  This column was written by Jerry Markon.

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The federal judiciary is on the verge of a major shift when President-elect Barack Obama's nominees take control of several of the nation's most important appellate courts, legal scholars and political activists say. With the Supreme Court's conservative direction unlikely to change anytime soon, it is the lower courts -- which dispense almost all federal justice -- where Obama can assert his greatest influence.

The change will be most striking on the Richmond-based U.S. Court of Appeals for the 4th Circuit, long a conservative bastion and an influential voice on national security cases, where four vacancies will lead to a clear Democratic majority. Democrats are expected to soon gain a narrower plurality on the New York-based 2nd Circuit, vital for business and terrorism cases, a more even split on the influential D.C. appeals court and control of the 3rd Circuit, which covers Pennsylvania and New Jersey.

Although Republican control will probably persist on a majority of appellate courts for at least several years, some experts say that by the end of Obama's term, he and the Democratic Congress will flip the 56 percent majority Republican nominees now exert over those highly influential bodies.

"Obama has a huge opportunity," said Arthur Hellman, a University of Pittsburgh law professor who is an authority on federal courts. "In a very short time, significant segments of the appellate courts, which are the final authority in all but a tiny handful of cases, will be dominated by Democratic nominees."

The new judges might gradually reshape what many see as a conservative drift in the courts under the Bush administration and issue more moderate-to-liberal rulings in the ideologically charged cases that have fueled the struggle for control of the judiciary. Many judges are independent, and party affiliation is not a perfect predictor of their behavior. Still, studies have shown that Democratic and Republican nominees vote differently on such cultural issues as abortion and gay rights, along with civil rights, environmental law and capital punishment.

The pace of change will depend not only on how long Democrats keep control of the presidency but also on the ideology of Obama's nominees. Although his Cabinet choices have won praise from Republicans as centrist, Obama's past statements indicate a generally liberal judicial philosophy, one that favors Supreme Court justices and other judges who back abortion rights.

"What I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being . . . dealt with sometimes unfairly," Obama, a former constitutional law professor, said in a May interview with CNN.

A spokesman for Obama's transition office declined to comment.

Energized by Obama's victory, liberal groups are pressing for nominees to their liking. "The voters have sent a mandate to the new president that we can restore balance to the federal courts, and we're confident that will occur," said Kathryn Kolbert, president of People for the American Way, which has been in touch with transition officials. She vowed to prevent "extremists on the right from hijacking the process."

Conservatives said they are hoping for moderate nominees but worry that "judges will be an issue where Obama throws a lot of crumbs to his political base," said Curt Levey, executive director of the Committee for Justices, which advocates a conservative judiciary. "People are worried. Obama has been unusually unabashed about believing in an activist role for judges."

He called on Republican senators "to play hardball" in resisting Obama's nominees.

Senate Republicans, who retained enough seats in the November elections to filibuster judicial nominees, said they have not settled on a strategy. Democrats, who successfully blocked some of President Bush's 4th Circuit and other appellate nominees, said they will try to win Republicans' support but made it clear that they will push for quick confirmations.

"There is just no question about the importance of the appellate courts, because so few decisions get up to the Supreme Court," said a Democratic Senate source who spoke on condition of anonymity because Obama has not been inaugurated.

The Senate confirms presidential nominees to the 179-judge federal circuit courts and the 678-judge U.S. District Courts. The circuit courts of appeals, which cover the nation's 13 federal judicial circuits, decide more than 30,000 cases a year. The Supreme Court takes fewer than 100 new cases each year.

Control of the appellate courts has shifted with the party in power. Republicans controlled 64 percent of appellate judgeships in 1993, but President Bill Clinton, a Democrat, reduced that to 42 percent by 2001. Bush's appointees have restored a 56 percent Republican majority of the total authorized judgeships.

With current and future vacancies and Congress likely to pass a bill to create 14 appellate judgeships, Obama is likely to reduce Republican appointees to 42 percent and boost Democrats from the 36 percent to 58 percent during his first term, said Russell Wheeler, a Brookings Institution scholar who studies federal courts. The bill would also create 52 federal district judgeships, although those judges are more bound by precedent and party affiliation matters less.

An immediate priority for Democrats will be filling the four vacancies on the 4th Circuit, which covers Virginia, Maryland, West Virginia and the Carolinas and has long been considered one of the nation's most conservative courts. The court has issued forceful conservative rulings, including striking down a law allowing rape victims to sue their attackers, and supported the Bush administration in key national security cases involving terrorism defendants and so-called enemy combatants.

But vacancies have whittled the court's Republican majority to 6-5, with some Republicans faulting the Bush administration for moving too slowly to nominate replacements and others blaming Democratic obstructionism. "Conservatives thought of the 4th Circuit as Shangri-La, and it's very frustrating that it's on the verge of going to the other side," said Manuel Miranda, chairman of the conservative Third Branch Conference and a former top Republican Senate lawyer.

Democrats will probably also gain control of the 2nd Circuit, which hears important terrorism and business cases, with the nation's financial markets based in New York. It is split 6-6 between Democratic and Republican nominees, with one vacancy. But the judgeship bill sponsored in the last Congress by Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) would give Democrats two more seats to fill.

[abbe91]

Liberal judges are killers, accomplices in the death of 40 million Americans since Roe vs Wade.
Posted by Christ_Truth at 12:32 AM : Dec 09, 2008

Must be frustrating to waste millions of spermatozoids a day ?

[hatesthecolt]

Obama will turn Bush''''s "Just-us" system back into America''''s Justice system.





Posted by CaribouBarbi

I LIKE IT!

[cariboubarbi]

Obama will turn Bush''s "Just-us" system back into America''s Justice system.

[hatesthecolt]

et''''''''''''''''s see - abortion on demand funded by tax dollars, abortion for underage children, gay marriage, gay adoptions, *** in the boy scouts, guaranteed parole for all offenders, no offender under the age of 18 tried as an adult, no capital punishment - we must feed, clothe, house and provide medical care for murderers all their lives, lowered age of consent, no limit to pornography on line, on TV, or in the movies, legalized drug use, unlimited school bussing, welfare on demand, etc. etc. Seems like a good judicial agenda to me.

Posted by swin5

Of course, it''s a complete overstatement but the reality is so inoffensive that you cannot make it sound unreasonable so you have to go for excess. Tsk tsk.

[irmcvet971]

What is a better agenda is to hospitalise all right-wing nut cases until their mental health has improved.

Posted by roger2123 at 02:25 AM : Dec 09, 2008

I have to say thats a great idea!!

[irmcvet971]

Just what we need more of, the most overruled court in the land, the ninth circus court of appeals. A complete court system that ignores the people''''s wish''''s.

You might as well kiss democracy goodbye.

Prepare yourself liberals, once you put the poewer in the hands of the uninformed you can''''t take it back, and at some point your going to disagree with them.

Then what you gonna do fool!

Posted by gunfighter51 at 06:12 AM : Dec 09, 2008


Now I know it''s hard for you to understand such things and you obviously have very little in the way of education or else you wouldn''t make these statements but IF you can, please take a few night course''s in AMERICAN HISTORY! Your lack of knowledge of how this great nation came to become as great as it is??? Well it''s breath taking. IF our Courts had followed the wishes of the People at the time of ruling we would NOT have the some of our GREATEST advancements! Again, it''s not necessary for you to achieve a High School Degree but at least pick up enough basic education to NOT embarrass yourself.

[pirmin3]

Sounds good to me. Do away with these bible thumping nut jobs.

[r9119111]

If it was a matter of (democracy) majority rules, we would still have slavery.
Do a little reading, will you.

Posted by roger2123 at 01:53 AM : Dec 09, 2008

FYI
We live in a Democratic Republic.

DEMOCRACY:
1. free and equal representation of people: the free and equal right of every person to participate in a system of government, often practiced by electing representatives of the people by the majority of the people
"Democracy is like the experience of life itself - always changing, infinite in its variety, sometimes turbulent and all the more valuable for having been tested for adversity." (Jimmy Carter Speech to Parliament of India June 2, 1978)
2. democratic nation: a country with a government that has been elected freely and equally by all its citizens
3. democratic system of government: a system of government based on the principle of majority decision-making
4. control of organization by members: the control of an organization by its members, who have a free and equal right to participate in decision-making processes


[Late 16th century. Directly or via French medieval Latin democratia Greek d%u0113mokratia "rule of the people" d%u0113mos "people" + kratos "rule"]

[swin5]

Let''s see - abortion on demand funded by tax dollars, abortion for underage children, gay marriage, gay adoptions, *** in the boy scouts, guaranteed parole for all offenders, no offender under the age of 18 tried as an adult, no capital punishment - we must feed, clothe, house and provide medical care for murderers all their lives, lowered age of consent, no limit to pornography on line, on TV, or in the movies, legalized drug use, unlimited school bussing, welfare on demand, etc. etc. Seems like a good judicial agenda to me.

[freedomscry]

We need conservative judges who will stand for the principles on which our nation was founded, as found in the Constitution. What we do not need is liberals who try to legislate from the bench.

[drinuk]

gctomajton. You wouldn''t know a leftie if he bit your ***, real lefties are the people who run countries like the UK, clandestine Neo Soviets pretending to be middle of the road. People who were visting Cuba on trade union paid junkets in the sixties and seventies, You must know them, there are the very same people who GW chose as his partners in an illegal war.

[centerfall94]

Get rid of the bitter "conservative" activist judges!! WOOHOO!! Bahahahaa....... gonna be a great four years!

[faletinme]

As long as Obama and his bud''s don''t reduce the number of "conservative" federal prosecutors he should be alright. After all,according to the dems, god forbid any prosecutor should be dismissed on the basis of his/her political views.

[aldon61]

A change is what''s needed; Bush stacked the courts, now it''s Obama''s turn. Ideally, I would like to see three conservative, three liberals and three moderates on the supreme court. We need diverse opinions to help run our country. Partisan politics seems to be the "rule of the day" now, so like I said earlier, it''s Obama''s turn, live with it!

[cariboubarbi]

Wingnuts.


It really doesn''t matter what Obama does or doesn''t do.

You''re obviously going to whine for at least the next four years.

Try to be an American for once in your life.

[downsteamjim]

Judge Judy, Judge Joe Brown, and Oprah W., you day has come.

[spinproof]

Obama To Shift Balance In Federal Courts

The same shock everyone is still in from Pres.-elect Obama''s current picks for his administration will continue with Pres.-elect Obama''s Judicial picks as well, the Legal Landscape will "CHANGE" just like his choice in administration "CHANGED"! LOL

[freedomscry]

We need conservative judges who will stand up for the principles on which America was founded.

[hatesthecolt]

Yeah......freaks like Madonna will be the norm!!! On the one hand it will be any thing goes and on the other hand Big Brother is watching every thing you do....freedom will be an illusion...just the way the liberal freaks like it!

Man, are YOU nuts or what??? You just watched this adminsitraiton for 8 years and you''re worried about Big Brother????

[forasongca]

If the Repubs attempt to filibuster Obama''s nominees, I certainly hope they can expect one of their own cherished phrases to come back to haunt them: "Up or down vote."

''Nuff said.