Judges Battle Transcends Numbers

The looming battle over President Bush’s nominees to the U.S. appeals courts might derail the Senate, but it probably won’t make much difference in the federal courts. That’s because Republican appointees already dominate them.

Ninety-four of the 162 active judges now on the U.S. Court of Appeals were chosen by Republican presidents. On 10 of the 13 circuit courts, Republican appointees have a clear majority. And, since 1976, at least seven of the nine seats on the U.S. Supreme Court have been filled by Republican appointees.

Even if Bush wins approval for the dozen disputed nominees who have been blocked by Senate Democrats, only one circuit would change its ideological balance -- hardly a seismic shift. The 6th U.S. Circuit Court of Appeals in Cincinnati, now evenly divided, would become 10-6 Republican.

Though it remains a staple of conservative rhetoric that the courts are “out of control” and driven by “liberal activists,” the GOP’s control of the White House for 24 of the last 36 years has given Republicans -- if not conservatives -- a firm grip on the federal judiciary.

But the fact is that party labels don’t necessarily mean much on the bench.

For Republicans, that has become especially clear as the party has moved further to the right, in some cases leaving “conservative” judges looking “moderate.”

That’s why last year’s Republican Party platform took aim at the GOP-dominated federal courts and pledged to “stop activist judges from banning the Pledge of Allegiance and the Ten Commandments.”

The fight may have more to do with the kind of Republican who joins the courts, in particular the Supreme Court. While Democrats are determined to block judicial nominees they see as conservative ideologues, the Republican leadership pushes for right-leaning judges.

Under the Constitution, the president’s judicial nominees need only a majority vote in the Senate to be confirmed. However, under the Senate’s rules, it takes 60 votes in the 100-member Senate to cut off debate, breaking a filibuster.

That means the 44 Democrats can block Bush’s nominees by refusing to cut off debate. To prevent that, Republicans now threaten to remove the ability to filibuster judicial nominations.

The imminent fight over appeals court nominees is widely considered a rehearsal for this summer, when the ailing Chief Justice William H. Rehnquist, 80, is expected to retire. He could be the first of several high court justices to depart during Bush’s second term.

“The only way to explain the fever pitch over this issue [of filibusters] is its potential impact on a Supreme Court fight,” said Washington attorney Brad Berenson, a White House lawyer during Bush’s first term. “It is about whether the Democrats will be able to block a Supreme Court nomination.”

The dominance of GOP appointees on the Supreme Court has not led to predictably conservative rulings.

Indeed, the court has upheld the right to abortion and preserved the ban on school-sponsored prayers, two of its still-disputed liberal precedents.

And more recently, it has expanded gay rights, upheld affirmative action in colleges and universities, and struck down the death penalty for murderers who are mentally retarded or under age 18.

The importance of what brand of Republican joins the court was driven home in 1987, when Reagan chose the conservative Judge Robert Bork. Senate Democrats defeated Bork, and Reagan chose instead Judge Anthony M. Kennedy of Sacramento, a Republican with a reputation as a moderate conservative. He won a unanimous confirmation by the Senate.

The switch proved momentous.

In 1989, Kennedy cast the fifth vote to rule that burning an American flag was protected as an act of free speech. In 1992, Kennedy and Justice Sandra Day O’Connor, Reagan’s first appointee, cast the deciding votes to uphold the right to abortion and to prohibit public schools from sponsoring prayers, even during ceremonies such as graduation. O’Connor cast the deciding vote to uphold college affirmative action two years ago, and Kennedy cast the key vote last month to strike down the death penalty for juvenile murderers.

Bork, now retired, has said he would have voted the other way on all those issues and given the conservative dissenters the majority.

A similar drama could play out in Bush’s second term.

Justice John Paul Stevens, who will celebrate his 85th birthday Wednesday, has been the court’s liberal leader for the last decade. Though he has been in good health, he could be forced to step aside in the next few years. Similarly, O’Connor, 75, has been the subject of retirement rumors, although she says she has no plans to quit.

If the Senate’s filibuster rule survives, Democrats could wield a veto of sorts if Bush were to choose, for example, Justice Clarence Thomas to replace Rehnquist. Another possible nominee, Judge J. Michael Luttig of Virginia, a conservative, has been targeted by liberal activists and could expect a Democratic filibuster.

However, if the Republicans win a change in the filibuster rule, Bush could look forward to easy confirmation for his Supreme Court nominees.

In the meantime, the fight is over nominees to the midlevel appeals courts, whose authority is limited.

They hear appeals from the federal trial courts in their region, and these appellate judges are supposed to follow the law as written by Congress and interpreted by the Supreme Court. When the circuit courts disagree on a significant issue of law, the Supreme Court usually takes up a case to resolve the dispute.

Many of the disputed Bush nominees to those courts are not likely to have much impact even if confirmed.

For example, Priscilla R. Owen, 50, a justice on the Texas Supreme Court, was nominated to serve on the 5th Circuit based in New Orleans. She had a conservative, pro-business record on the Texas court, and Democrats on the Judiciary Committee said they did not believe she would be fair to workers, environmentalists and others who sued a business.

In 2003, using the filibuster, the Democrats repeatedly blocked Owen from having a confirmation vote on the Senate floor. However, if the filibuster were broken or the rules were changed to enable Owen’s confirmation, she would merely add one more conservative voice to a thoroughly conservative appeals court. Eleven of its 15 current judges are Republican appointees.

Despite some of their rhetoric, Congressional Republicans have acknowledged by their actions that the federal courts are not wildly liberal.

This year, the GOP pushed through a bill to limit class-action lawsuits by transferring them from state to federal judges. Its sponsors believed the federal judiciary would prove more friendly to business and less accommodating to trial lawyers and consumer activists.

The great exception to the GOP dominance in the federal court system is the 9th Circuit in the West, where Democratic appointees hold 16 of the 24 seats.

In the late 1970s, Congress created new judgeships in growing regions, and President Carter filled seats on the 9th Circuit with liberal Democrats, several of whom still serve today. In the 1990s, some of the Carter appointees stepped down, and they were replaced by appointees of President Clinton’s.

As a result, Bush’s drive to solidify the Republican hold on the federal courts is unlikely to break the Democratic grip in San Francisco. Only one of the pending nominees -- William G. Myers III -- is earmarked for the 9th Circuit.

But if the president cannot change the ideological cast of the 9th Circuit, Republicans in Congress can change the makeup of the 9th Circuit itself. It is by far the largest of the appeals courts, encompassing nine states, from Alaska to Arizona and California.

“It is not a question of if the 9th Circuit will be split, but when,” House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) told a conference of judges at the Supreme Court last month.

House Republicans are backing a bill to create two or even three circuits out of the current 9th Circuit, but the plan has stalled in the Senate.

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A Republican bench

Of the 162 active judges on the U.S. court of appeals, 94 of them, or 58%, are Republican appointees. There are 12 nominees by President Bush awaiting confirmation, all of whom were nominated earlier but blocked in the Senate. A breakdown of the circuit courts and their members:

*--* Democratic Republican Bush Circuit Headquarters appointees appointees nominees D.C. Washington* 4 5 3 1st Boston 2 4 2nd New York 7 6 3rd Philadelphia 6 7 4th Richmond 4 9 2 5th New Orleans 4 11 1 6th Cincinnati 6 6 4 7th Chicago 3 8 8th St. Louis 2 9 9th San Francisco 16 8 1 10th Denver 5 7 11th Atlanta 5 7** 1** Federal Washington* 4 8

*--*

Who appointed current judges

Nixon: 1

Ford: 1

Carter: 9

Reagan: 29

G.H.W. Bush: 29

Clinton: 59

G.W. Bush: 34

Total: 162

* The D.C. Circuit takes up appeals filed in the nation’s capital. The Federal Circuit is a specialized court that chiefly handles patent cases.

**William Pryor of Alabama was put on the 11th Circuit by President Bush in a temporary, recess appointment. The president also nominated him for the seat, and Pryor is awaiting confirmation by the Senate to a permanent post.

Source: U.S. Courts of Appeal