What the November Elections Mean for the Federal Courts of Appeals

by Ed Whelan

Two months before an election that might put control of the Senate in Republican hands, I figured I’d highlight President Obama’s record on judicial appointments for the federal appellate courts as well as the current composition (by political party of the appointing president) of those courts.

As things now stand, President Obama has appointed exactly the same number of federal appellate judges—52—as President George W. Bush appointed in his first six years. [Clarification (9/12): The Bush total includes one short-serving recess appointee; his six-year total for confirmed federal appellate judges was 51.] (Obama will surpass the Bush six-year total if the Senate, before the end of the year, confirms the pending nomination of Jill Pryor to the Eleventh Circuit.) [Update (9/9): The Senate confirmed Pryor on 9/8.] 

As a result, nine of the thirteen federal courts of appeals (D.C., First, Second, Third, Fourth, Tenth, Eleventh, and Federal Circuit) now have a majority of Democratic appointees among their active judges. When Obama took office, only one (Ninth) did. (I’m relying on the data from these two sites for my comparison.)

Facing a Democratic-controlled Senate, Bush appointed only ten federal appellate judges in 2007 and 2008 (and one of those, Sixth Circuit appointee Helene White, was in reality a Democratic pick, much as Fourth Circuit appointee Roger Gregory had been). So that took Bush’s eight-year total to 62 61 confirmed federal appellate nominees. [Ive tweaked the preceding sentence consistent with my clarification in the second paragraph.]

If Republicans take control of the Senate this November, they should be able to hold Obama to Bush’s eight-year total. But if they don’t, Obama is likely to vastly exceed the Bush total.

For starters, there are currently eight vacancies (including the one to which Pryor has been nominated). In addition, Seventh Circuit judge John Tinder (a Republican appointee) has announced that he will take senior status in February 2015. (The party split on the Seventh Circuit is currently seven Republicans and three Democrats, but the ideological divide is much closer and might already lean left.)

Much more importantly, by my count there are some 34 Democratic appointees who are or will soon—by some time next year—be eligible to take senior status. It’s not easy to predict which eligible judges will elect to go senior. But now that the filibuster has been abolished, if the Senate remains in Democratic hands, any judge who takes senior status by the end of 2015 could confidently expect Obama to appoint his or her successor. Any such appointments wouldn’t further alter the party composition of the circuits, but they would entrench those seats in Democratic hands for another 15 to 20 years (and thus make it more difficult for the next Republican president to achieve a majority of Republican appointees).

Then, too, there will almost certainly be some—perhaps many—additional vacancies created, one way or another, by Republican appointees. If we look only at the courts of appeals that still have a majority of Republican appointees, we see six Republican appointees on the Fifth Circuit who are eligible to take senior status, five on the Sixth Circuit who are eligible or will be during 2015, five more (besides Tinder) on the Seventh Circuit (including four who are already older than 75), and three on the Eighth Circuit. It wouldn’t take much to flip all of these courts to majorities of Democratic appointees.

Bottom line: Any hopes that judicial conservatives have for preventing further damage to the courts of appeals depend heavily on Republicans winning control of the Senate this November.

Bench Memos

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