11 September 2008
Next President Could Shape U.S. Judiciary More than Predecessors
Likely judge retirements, new positions boost potential to shift balance
Washington — An elected official’s power to make judicial appointments, especially to the Supreme Court of the United States, is a factor many U.S. voters consider when they go to the polls.
The next president of the United States likely will make one or more appointments for life to the bench of the Supreme Court, the highest level of the third co-equal branch of government (with the executive branch and the legislative branch). Supreme Court decisions are the final authority on contentious issues, whether mundane or revolutionary.
At the Brookings Institution in Washington on September 4, judicial analysts speculated that, more so than in previous years, a President John McCain or a President Barack Obama would be assuming office at a time of looming retirements and newly created vacancies that could amplify their effect upon the federal judiciary beyond that of their predecessors.
Brookings research director Benjamin Wittes said at the Supreme Court level, the nine-member body is roughly divided between four liberal justices and four conservative justices with Justice Anthony Kennedy serving as a “fulcrum” in the middle.
But, because many of the older justices tend to be liberals, he said a President McCain would be able to decisively shift the court to the right. Alternatively, a President Obama could reinforce the liberal side with younger justices.
U.S. courts affect the lives of ordinary Americans with rulings on contentious issues such as employee discrimination, workplace safety, environmental protection, abortion and election redistricting.
THE U.S. COURT OF APPEALS
The Supreme Court, the highest court in the land, receives more than 7,000 petitions each year, but generally agrees to hear 100 or fewer. The vast majority of cases that go through the appeals process are decided at a lower level by the U.S. Court of Appeals, comprising 179 judges in 13 circuits across the United States. All those judges are presidential appointments.
“Collectively at the lower court level and individually at the Supreme Court level, those nominees do incrementally and sometimes quite dramatically affect the direction of the law,” Wittes said. But voter concern should not get out of hand. “The federal judiciary has a lot more continuity than sudden change.”
Looking closely at the appellate court circuits, Russell Wheeler, a visiting fellow at Brookings, presented data on appointments by presidents George H.W. Bush, Bill Clinton and George W. Bush. He showed how President Clinton reduced representation on the bench by Republican appointees from 64 percent in 1993 to 41 percent in 2001 and increased the percentage of Democratic appointees from 21 percent to 44 percent during the same period. The remaining 16 percent in both cases were unfilled vacancies.
In his eight years as president, George W. Bush has not been able to shift the appellate courts as dramatically as Clinton. As of September 2008, 56 percent of appellate judges are Republican appointees and 36 percent were appointed by Democratic presidents.
The explanation, Wheeler said, is not congressional obstruction. (Both Clinton and Bush had an identical 73 percent confirmation rate of their nominees.) Instead, a combination of retirements and the creation of new judgeships during the Clinton years allowed the Democratic president to shift the balance more dramatically.
“So what that suggests is there are structural factors working … in the federal judiciary that influence how much of an impact a president may have on changing the face of the courts of appeals,” Wheeler said.
SUBSTANTIAL SHIFT POSSIBLE
Looking ahead, he said President McCain or President Obama will be in a position to shift the balance even more than before.
“Overall, McCain would be able to increase the number of Republican appointees up to 74 percent — a very strong majority. If Obama wins … he could reduce the number of Republican appointees from 56 percent down to 42 percent and create 58 percent Democratic appointees. So, a big shift there, depending upon who wins,” he said.
Wheeler predicts that, in the next administration, at least half of the judges currently eligible to retire now or by 2011 will decide to step down, Congress will pass legislation to create 14 new judgeships, and the president will fill all judicial vacancies.
He said a McCain victory would create a Republican-appointed judicial majority in all 13 federal court of appeals circuits, while Obama would create a Democratic majority in eight circuits, leaving three with a Republican majority and the remaining two evenly split.
“Aside from the Supreme Court, you could say this election could make a difference in terms of the composition of the courts of appeals measured by judges appointed by president of the two different parties,” Wheeler said.
Lest voters of both sides lose sleep over the issue, he said the practical effect of having the judiciary dominated by either party is less than many would assume, given the nature of most cases.
“The case load of the court of appeals is in many ways fairly mundane with cases where the law is pretty clear and it is just a matter of finding it and announcing it,” he said.
