Posted by
Always To The Right on Friday, October 31, 2008 3:51:51 PM
The presidential election could affect appellate courts even more than the Supreme Court. “Courts in the Balance”
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.
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.
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.