The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Monday, May 11, 2009

Indirect Satisfaction

Obama May Never Tip the Balance of the Supreme Court But He Can Radically Transform the Federal Judiciary.

Last Wednesday, I posted about Supreme Court Justice David Souter’s decision to retire, thus providing President Obama with his first opportunity to name a replacement to the Court. Most analysts see Souter’s replacement as having little impact on the Court’s ideology, although some conservatives disagree, arguing Obama is sure to replace a left-leaning centrist with a far-left extremist.

I agree that Souter’s quirkiness extends from his personal habits to his jurisprudence sufficiently to make an exact replacement particularly difficult for Obama, even assuming he desires this. Overall, however, I side with those who predict Obama’s impact on the Supreme Court will be minimal for the near future.

While Obama could easily name as many as three to four new Justices over the next four years, the oldest and most infirmed sitting Justices tend to be liberal. Obama will have to win re-election and/or an unexpected death or illness must occur among the Court’s conservative faction or Justice Kennedy, its swing vote, before tipping the balance becomes likely.

Yet for all of its power and influence, the Supreme Court is only one court within the federal judiciary and the vast majority of cases decided each year never reach its hearing. It is among federal appellate and district courts that Obama is actually poised to make his greatest mark.

Given the rampant and none-too-subtle promotion of conservative ideology in federal judicial nominations practiced by the former Bush Administration, a natural initial assumption is that Obama can once again do little more than fight back a right-wing tide. In fact, he stands an excellent chance of moving the federal Judicial Branch solidly to the left.

To see how this is possible, we need only resurrect an October 2008 op/ed piece from the Wall Street Journal by Steven Calabresi, a Professor of Law at Northwestern University and co-founder of the Federalist Society. Calabresi looks at the makeup of the thirteen federal appeals courts and finds Obama in a position to change the majority makeup in most of them.

In the case of the DC Circuit Court of Appeals, two seats are currently vacant. With a friendly Congressional majority, Obama should be able to fill these seats. He is also likely to replace two older Clinton appointees if they retire as well as the seats of four older Reagan and George H.W. Bush appointees who may retire as well.

This is as many seats as former President Reagan was able to appoint to the DC circuit during his two terms, causing this court to go conservative in the 1980s. Obama is poised to create a liberal majority once again on the court most often hearing regulatory cases.

Obama can likely do the same thing for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal. Given the Ninth Circuit is already solidly left today, Obama could wind up creating liberal majorities in ten of thirteen circuits, including several extremely influential ones in certain areas of law.

Although we may agree or disagree with Calabresi’s subsequent analysis of Obama’s nominating criteria as na├»ve and dangerous, there is no disputing his math. A 2008 study of future vacancies among lower-level appeals courts by the Brookings Institution also predicts Obama will install a Democratic judicial majority by 2013.

Obama took his first steps in this direction in April, when he nominated Maryland judge Andre Davis for the Fourth Circuit Court of Appeals. Davis’s approval would leave the Fourth Circuit with six Democratic-appointed judges, six Republican-appointed judges, and three vacancies.

Obama also nominated New York Judge Gerard Lynch for the Second Circuit Court of Appeals. Lynch’s approval tips the Second Circuit’s balance, giving it seven Democratic-appointed to only six Republican-appointed judges.

Both Davis and Lynch are widely viewed as solid but progressive jurists.

Obama’s remake of the judiciary could have profound effects even if the next game-changing Supreme Court nomination winds up made by a different President than him – even if that President is a Republican. Every current Supreme Court Justice was a former U.S. appellate court judge, as have been the majority of appointments for some years now, giving future conservative Presidents a smaller base of reasonably solid but sympathetic jurists from which to choose.

This would be just fine with liberal Washington Post columnist E.J. Dionne. “To pretend that these judicial fights are about anything other than the court's philosophical direction is a form of willful dishonesty,” he writes. “It is better to be straightforward about the existence of a political struggle over the court than to manufacture phony reasons for opposing a nominee related to ‘character’, ‘qualifications’ or ‘temperament’.”

According to Dionne, Democratic members of Congress who opposed Bush Supreme Court appointees Roberts and Alito should not be “hypocritical themselves and deny the conservatives’ right to challenge a nominee's philosophy. On the contrary, liberals should welcome a real debate – and win it.”

Obama was one such member of Congress. While he may never replace these Justices directly, Obama may gain satisfaction indirectly by limiting his successors’ pool of jurists to men and women of his personal legal philosophy.

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