Conservatives are rightly concerned about the presidential election’s impact on the U.S. Supreme Court. The next president could nominate as many as three Supreme Court justices in his first term alone, as five of the nine justices will be seventy or older on inauguration day, including Justices Antonin Scalia and Anthony Kennedy. Some think a sixth justice, David Souter, could also be close to stepping down. So either John McCain or Barack Obama is likely to place his imprint on the nation’s highest court.
Yet however much the presidential election will affect the U.S. Supreme Court, the likely effect on lower federal courts should be even greater. Approximately one third of the nation’s federal district court and appellate court judges are Bush nominees. Despite Democratic efforts to delay or prevent confirmation of key appellate nominees, 56 percent of the nation’s 179 appellate judges were nominated by Bush or a prior Republican President. Yet in just a single term, a President Obama could flip the federal judiciary, such that a clear majority of federal appellate judges would be Democratic nominees.
A recent analysis by Russell Wheeler, former deputy director of the Federal Judicial Center, now a visiting fellow at the Brookings Institution, illustrates how the next president could influence the composition of federal appellate bench. There are currently fifteen vacancies on the U.S Courts of Appeals — vacancies that are unlikely to be filled before President Bush leaves office, particularly if Obama wins the election. The U.S. Judicial Conference has also recommended the creation of 14 additional seats on federal appellate courts to address backlogs on some Circuits, bringing the total number of federal appellate judges to 193. Assuming the Senate takes the Judicial Conference’s advice — as a Democratic Senate would be almost certain to do — and President Obama would have 29 vacancies to fill, but this is only the beginning.
Over 60 appellate judges are currently eligible for senior status, or will become eligible between now and 2011. Assuming that only half of those eligible take senior status or retire, and the next president will have an additional 32 vacancies to fill, a majority of which would be vacated by Republican nominees. If Wheeler’s estimates are correct, this would mean that a President Obama would have the opportunity to fill 61 appellate spots in his first four years. In other words, a President Obama could come close to matching President Bush’s influence on the U.S. Courts of Appeals in just his single term, as he would name almost one-third of the federal appellate judges on the bench. This would also increase the percentage of sitting federal appellate judges picked by Democratic presidents up to 58 percent.
Wheeler’s scenario suggests dramatic changes circuit-by-circuit as well. Ten of the thirteen federal appellate courts have a majority of Republican-nominated judges, including the U.S. Court of Appeals for the D.C. Circuit, often considered the second most important court in the land. Yet after a President Obama’s first term, Wheeler projects that only three circuit courts — the Fifth, Eighth and Tenth — would continue to have Republican-nominated majorities. Confirmation of Obama nominees would create Democratic majorities on the First, Second, Third, Fourth, Seventh, Eleventh and D.C. Circuits, and increase the Democratic margin in the Ninth.
Were Senator McCain to be elected, Wheeler estimates that the percentage of federal appellate judges named by Republicans would increase to a whopping 74 percent, the highest percentage of sitting judges picked by Presidents of a single party in quite some time. Yet there are reasons to be skeptical of this projection. For starters, Wheeler assumes that the Senate will confirm the next president’s nominees for current vacancies and those that open up by 2011. This is certainly reasonable if one assumes the President and Senate majority are of the same party. But a President McCain would face a strong Democratic majority in the Senate — a majority that would be unlikely to rapidly confirm many of his nominees, particularly not without substantial compromises about potential nominees. This means that the ability of a President McCain to increase the Republican-nominee presence on federal appellate courts would be far more limited than a President Obama’s ability to flip the courts’ within his first term.
Most federal appellate judges are principled and highly qualified individuals, irrespective of who nominated them to the bench. Most appellate judges agree on the correct case outcome in the vast majority of cases. Recent studies suggest that federal judges only disagree on 10 to 15 percent of those cases that appear to have an “ideological dimension.” Yet it is the minority of ideologically charged cases that divide federal judges that are often viewed as most important, particularly insofar as they fill gaps or ambiguities in current law or push legal doctrine in a given direction. Further, the Supreme Court only reviews a tiny fraction of federal appellate cases — indeed less than one percent — so the judgment issued by a U.S. Court of Appeals is, for most litigants, the end of the line. This means the composition of federal appellate courts can have a substantial impact on the law.
This year’s election will undoubtedly shape the future of American courts. While most focus on the potential impact of Supreme Court nominations, the impact on the U.S. Courts of Appeals could be even greater, particularly during the next president’s first term. Replacing Justice John Paul Stevens or Ruth Bader Ginsburg with another liberal justice may not alter the High Court’s jurisprudence all that much. Naming over one-fourth of sitting federal appellate judges, on the other hand, could produce significant legal changes almost immediately — changes that, thus far, have been largely overlooked.
– NRO Contributing Editor Jonathan H. Adler is professor of law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law.