September 2009:
How Power Could Shift in the Federal Courts

Washington Watch | September 2009
By Bruce Moyer

President Barack Obama’s successful appointment of his first justice to the U.S. Supreme Court has left the political complexion of the Court largely intact. With Justice Sonia Sotomayor succeeding Justice David Souter, the balance between conservatives and liberals on the Court is likely to remain much the same, with Justice Kennedy continuing to serve as the Court’s jurisprudential fulcrum.

The President may still have an opportunity to make one or two more appointments to the Supreme Court—possibly even during a single term. However, his greatest chance for reshaping a judiciary that has grown increasingly conservative over the past three decades rests in actions to fill vacancies on the circuit and district courts.

Judges appointed by Republicans currently hold the balance of power on nearly every one of the 12 federal appellate courts. Republican judicial appointees control the D.C. Circuit (6-3), the Fifth Circuit (13-4), Sixth Circuit (9-6) (counting Judge Helene White as a Democratic appointee), Seventh Circuit (7-3), Eighth Circuit (9-2), Tenth Circuit (8-4), and Eleventh Circuit (7-4). As Eric Haren, an associate at Jenner & Block, pointed out in a recent essay on www.law.com, judges appointed to appellate courts by Republican administrations have an 88-61 advantage over
judges appointed by Democratic administrations.

As of mid-August, there were 21 vacancies on the appellate courts, and these openings could provide the beginning of a shift in the balance of power. President Obama has named only seven appellate court candidates thus far, and 13 vacancies remain. Five of those vacancies alone are on the Fourth Circuit, considered by many as one of the most conservative courts of appeal.
Obama’s appointments on the Fourth Circuit would shift the balance from a 5-5 split (considering Judge Roger Gregory as a Democratic appointee) to a 10-5 majority of Democratic appointees.

This shift could accelerate as active appellate judges assume senior status, thereby creating more vacancies. Haren estimates that as many as 50 appellate judges could assume senior status during Obama’s first term. (To assume senior status, a judge must be at least 65 years old and have served at least 10 years on the bench; the sum of the judge’s age and years on the bench also must reach at least 80.)

Of those 50 appellate judges who could assume senior status, 35 were appointed by Republican presidents. Assuming those vacancies materialize, along with the 61 current Democratic appointees and the 20 current vacancies, Democratic appointees could occupy 116 of the 167 appellate judgeships (excluding those on the specialized Federal Circuit) by the end of Obama’s first term. Haren speculates that the number of Democratic appellate judges could increase by 15 during a potential second term. The impact on individual appellate courts could be significant. For example, although only one vacancy currently exists on the 17-judge Fifth Circuit, the balance of power could shift if eligible judges assume senior status. Eight of the court’s 13 Republican appointees are currently eligible to assume senior status.

A judge’s eligibility for senior status is certainly not a guarantee of a vacant judgeship. Nor is there assurance that a judicial appointee selected by a Democrat will be less conservative than a judge nominated by a Republican. But Haren has found that nearly 65 percent of current living senior appellate judges assumed senior status almost immediately after becoming eligible; roughly 80 percent did so within two years and 86 percent did so within four years.

Assuming that trend holds, the potential shift toward Democratic majorities on appellate courts extends across nearly every circuit. Democratic appointees could have majorities on the First Circuit (5-1), Second Circuit (9-4), Third Circuit (9-5), Fourth Circuit (12-3), Sixth Circuit (9-7), Seventh Circuit (8-3), Ninth Circuit (21-8), Tenth Circuit (8-4), Eleventh Circuit (10-2), and D.C. Circuit (8-3) after Obama’s first term alone. This shift could translate into less conservative jurisprudence emanating from three-judge panels and certainly from en banc sessions.

The same dynamic could extend to the district courts, where Republican appointees hold 59 percent of occupied district judgeships. But again, vacancies on district courts abound. As of mid-August, of the 675 Article III district courts, 70 district courts had vacancies, with nine Obama nominations pending. The appointment of young nominees to district and appellate judgeships will extend the breadth of control, potentially lasting for decades.

Thus, we could begin to see judicial majorities appointed by a Democratic President emerging in the federal appellate courts and district courts relatively quickly. Such a shift could produce a substantial change not only in numbers themselves but also in the decision-making that emerges on a host of issues.

Bruce Moyer is government relations counsel for the FBA.
© 2009 Bruce Moyer. All rights reserved.

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