Much has been made this election cycle about the future composition
of the Supreme Court, and with good reason. If John McCain wins Tuesday,
it's practically assured that
he will appoint hardline conservative judges to the bench, pushing the
court further rightward and likely endangering the reproductive rights of
women, whose concerns he openly mocked in the final debate. But the
next president will have a major opportunity to reshape the nation's
legal landscape through appointments to the 13 federal appellate
courts, as well.
Instructive here is research from Russell Wheeler of The Brookings Institution. According to Wheeler, it's likely that the 111th Congress will create 14 new circuit judges positions as recommended by the United States Judicial Conference. He also estimates that half the circuit judges who are now eligible or will become eligible for retirement by 2011 will exercise that right (even though they have lifetime appointments).
If that's the case, the partisan make-up of the Appeals courts will follow the SCOTUS pattern. Wheeler predicts President McCain would increase the total proportion of Republican appointees from 56 percent to 74 percent and reduce the proportion of Democratic appointees from 36 percent to 26 percent. All 13 courts of appeals would have Republican appointee majorities, as well, up from the current 10. President Obama would likely do just the opposite, reducing the proportion of Republican appointees from 56 percent to 42 percent and increasing the proportion of Democratic appointees to 58 percent. Courts with solid Democratic majorities would also jump from zero to four and those with slight Democratic appointee majorities would move from one to four.
As an example, let's take the Seventh District Court of Appeals (which roughly covers (PDF) Illinois, Indiana, and Wisconsin). Currently, the court boasts a 7-3 Republican advantage with one vacancy, which President Bush is trying to fill before he leaves office. Under a Democratic administration, Wheeler predicts the court will ultimately feature a slight Democratic advantage, thanks to the possible retirements of five judges appointed by Reagan and George H.W. Bush.
Why are these appointments so important? Wohl explains:
This is not to say that federal judges work from party talking points; most take seriously their independence, which is, after all, the reason behind their constitutionally mandated lifetime tenure. Nonetheless, the choice of a judge by a president is an inherently political undertaking, and different judicial philosophies of constitutional interpretation can lead to vastly different results in judicial decisions.
To put it plainly: Dem-appointed judges are more likely to issue progressive-friendly decisions, whether on environmental protection, employment discrimination, or reproductive rights. And because the federal appeals courts provide the final decision on more than 60,000 cases annually, Wohl describes these judicial bodies as the "court[s] of last resort." Just another reason to sweat it out next Tuesday.
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