This article by David Savage in yesterday’s Los Angeles Times claims that a “rightward shift on the federal bench is likely to prove a lasting legacy of the Bush presidency.” In support of that proposition, the article states that “despite the Republicans’ loss of control of the Senate, 40 of Bush’s judges won confirmation [in 2007], more than in the previous three years when Republicans held the majority.” Further, “[a]mong the 12 regional appeals courts, all but one are closely split or have a Republican majority.”
Alas, the article’s prognosis is severely flawed, and its statistics are misleading.
Of the 98 sitting federal appellate judges appointed by Republican presidents, nearly half (46 of the 98) were appointed by President Reagan or President George H.W. Bush. There is ample reason to believe that the overwhelming majority of these judges will step down from active service at some point over the next eight years. So a Democratic president would rapidly transform the appellate courts from majority Republican appointees to majority Democratic appointees.
Of the 40 judges who were confirmed in 2007, only six were federal appellate judges. More importantly, Savage’s comparison of 2007 to previous years somehow ignores the unprecedented measures of obstruction—filibusters and return of nominees during intrasession recesses—that Senate Democrats employed when in the minority. A more instructive comparison would be between the number of federal appellate nominees confirmed during President Clinton’s second term (all with a Republican majority in the Senate)—35—and the number confirmed so far during President Bush’s second term—22, with less than a year to go.
Of the 12 regional appeals courts, five (Fifth, Seventh, Eighth, Tenth, and D.C.) currently have substantial majorities of Republican appointees, three (First, Sixth, and Eleventh) have narrow majorities of Republican appointees, two (Third and Fourth*) are tied, one (Second) has a narrow majority of Democratic appointees, and one (Ninth) has a substantial majority of Democratic appointees. But even those with a substantial majority of Republican appointees could be expected to swing Democratic with a Democratic president over the next eight years. For example, the Fifth Circuit currently has twelve Republican appointees versus four Democratic appointees. But eight of those twelve were appointed by President Reagan, and six of those eight range in age from 70 to 79 (and one of George H.W. Bush’s appointees is also in his 70s). If those six are replaced by Democratic appointees, the Fifth Circuit would swing to a 10-6 majority of Democratic appointees.
The bottom line for the federal courts of appeals is the same as for the Supreme Court: Any serious transformation of the judiciary requires the election in November 2008 of another president committed to appointing judges who will practice judicial restraint.
* Like the Federal Judicial Center database, I’m counting Roger Gregory, who was recess-appointed by President Clinton and then, in an act of unrequited generosity, appointed to a lifetime position by President Bush, as a Democratic appointee.