[Jonathan Adler, October 31, 2008 at 11:18am] Trackbacks
The Election and the Appellate Courts:

I have an article up on NRO this morning examining the potential implications of the Presidential election on the composition of the federal appellate courts. In it, I suggest that the next President is likely to have a greater effect on the federal appellate courts than on the U.S. Supreme Court, particularly if Barack Obama occupies the Oval Office.

Right now, just over one-third of active judges on the U.S. Courts of Appeals were nominated by President Bush, and just over one-half were nominees of a Republican President. This is what one would expect given that Bush has been in office for eight years, and that Republicans have occupied the White House for 20 of the past 30 years. Yet given the courts' composition, it is possible that a President Obama could select nearly a third of the appellate judiciary in just his first term. A President McCain, on the other hand, would be somewhat limited in his ability to expand the percentage of Republican nominees (particularly those who would be considered "conservative") because of Democratic control of the Senate.

Sarcastro (www):
Good thing that argument doesn't hold for the Supreme Court! No need for ideological balance in the highest court!
10.31.2008 1:34pm
Cityduck (mail):
I sure hope you are right that an Obama victory will result in a wave of appointments to the Federal Circuits. This is great news.

I have been a little depressed when I consider that there doesn't appear to be much opportunity to nudge the S.Ct. firmly back to the middle when the only likely departures are Souter, Stevens and Ginsberg.

But you just made me even more excited at the prospect of an Obama victory!
10.31.2008 1:39pm
Dave N (mail):
IMHO, Jimmy Carter's greatest legacy as President was his ultra-politicization of the federal courts. Congress almost doubled the size of the federal judiciary--and Carter proceeded to place uber-liberals on the federal and circuit courts. Thank goodness he never got a Supreme Court appointment.
10.31.2008 1:44pm
frankcross (mail):
Dave N, you are completely wrong about Carter. If you look at the voting patterns of those judges, statistically, they are quite moderate, even conservative in some areas like criminal law.

It was indubitably Meese/Reagan who politicized the selection of circuit court judges.
10.31.2008 1:53pm
xx:
Prof. Adler:

I realize the appeal and simplicity of using the party of the appointing president to identify judges' political preferences and judicial styles, but is it really an accurate measure? Take the Eleventh Circuit for example - Its on every list of courts that could go democratic in the first four years of an Obama administration. In reality, however, I think its hard to characterize more than two of the active judges as true "liberals." Several judges probably vote democratic, but have a decidedly conservative judicial style. Even eight years of a democratic administration is unlikely to swing the court.
10.31.2008 1:54pm
Dave N (mail):
Frank Cross.

Really? I practice in the 9th Circuit. Jimmy Carter's 9th Circuit appointments include Stephen Reinhardt, Harry Pregerson, Betty Fletcher, and Dorothy Nelson (among others). I would rank both Reinhardt and Pregerson well to the left of ANY other member of the 9th Circuit, including Paez and Thomas.

I look at the Reagan appointees to the 9th and I do not see ideologues appointed in the manner that Carter did. Feel free to provide counter-examples to show me where I am wrong.
10.31.2008 2:09pm
Kent Scheidegger (mail) (www):
Frank, I believe Dave N. is in the Ninth Circuit, and he is correct as to that court. While there are exceptions, the Carter appointees to that court on the whole were a disaster.
10.31.2008 2:10pm
Kent Scheidegger (mail) (www):
Oops, looks like Dave posted while I was typing mine.
10.31.2008 2:10pm
Frog Leg (mail):
An additional factor which will increase Obama appointments is that several of the Circuits are likely to get new judge positions. The Circuits have been wanting this for years, and creating the new positions will make Obama's influence that much larger.
10.31.2008 2:20pm
Steve:
Perhaps we should entertain the notion of splitting the Ninth Circuit after all.
10.31.2008 2:25pm
Dave N (mail):
Steve,

I think it makes eminent sense to split the 9th. The problem is that California, due to its size, probably should be a circuit unto itself. The problem is how to split the 9th if other states are included with California.
10.31.2008 2:33pm
Kent Scheidegger (mail) (www):
The other problem, from the viewpoint of persons of sense in California, is that the split would concentrate the most activist judges here.
10.31.2008 2:48pm
geokstr:
If Obama gets a supermajority in the Senate, there will be no temporizing influence from the minority party, no ability to filibuster the most liberal appointees. No matter how you look at the appointments under republican presidents, I don't think we have ever seen the potential shift in judicial philosophy that may happen under Obama.

He doesn't even need a supermajority either, because of the number of RINO's, including McCain himself, in the republican party.
10.31.2008 2:53pm
Bill Dyer (mail) (www):
Excellent article, Prof. Adler. Ping (in lieu of a trackback.)
10.31.2008 2:56pm
frankcross (mail):
I'm not just talking 9th Circuit, where you seem right. Your characterization of Pregerson and Reinhard fits the data of them as extremely liberal. But I'm talking overall. There are databases that code the votes of the judges as liberal or conservative. Overall, the votes of the Carter circuit court judges are pretty moderate. The 9th Circuit effect, I would guess, is less Carter personally than senatorial prerogative, maybe a Cranston effect.
10.31.2008 2:59pm
Sarcastro (www):

If Obama gets a supermajority in the Senate


Carter had 61 in the Senate and look at how far to the left he moved the US!
10.31.2008 3:01pm
davidddf (mail):
61 including many Dixiecrats.

The caucus is more ideologically coherent than it used to be throughout the 20th century.
10.31.2008 4:38pm
guest 0299:
The Carter judges on the Sixth Circuit certainly fit within Dave N's characterization.
10.31.2008 5:25pm
Oren:


I think it makes eminent sense to split the 9th. The problem is that California, due to its size, probably should be a circuit unto itself. The problem is how to split the 9th if other states are included with California.


The number of circuits isn't set in stone. Let Obama &Pelosi create a new circuit just for cali and fill it up with reinhardt liberals. The residents of Oregon and Washington will thank you for it.
10.31.2008 10:43pm
Dave N (mail):
Oren,

So will the residents of Arizona, Hawaii, Alaska, Nevada, Idaho, and Montana (not to mention the territorial islands).
11.1.2008 3:25am