Conservatives near lock on US courts

As Democrats and Republicans in Washington prepare for an expected showdown over the use of filibusters to stall judicial nominees, President Bush is already well on his way to recasting the nation's federal appeals courts in a more conservative mold.

Republican appointees now constitute a majority of judges on 10 of the nation's 13 federal appeals courts. As few as three more lifetime appointments on key courts would tip the balance in favor of GOP appointees on all but one appeals court - the Ninth US Circuit Court of Appeals in San Francisco.

The confrontation over judges heats up Thursday with the Senate Judiciary Committee expected to send a second appeals court candidate to the full Senate for a possible vote. The process is being closely watched because if either nomination triggers a filibuster, it could provide the vehicle for Republican senators to launch the so-called nuclear option, which would squelch filibusters.

It will be up to Senate majority leader Bill Frist to decide when to schedule a floor vote on Thomas Griffith, nominated to the US Court of Appeals for the District of Columbia Circuit. William Myers, a nominee to the Ninth Circuit, is also pending a floor vote.

Even if Republicans refrain from a nuclear option in these proceedings, legal analysts say the Bush administration is already accomplishing a significant shift within the federal judiciary. By winning a second term, he is well positioned to leave a presidential legacy that could take Democrats a decade or more to reverse.

The lineup of appeals court judges based on which president appointed them is a somewhat crude measure of the shifting ideological influences within federal courts. Not every Republican appointee votes conservative. Nor are Democratic appointees automatically liberal. But judicial scholars say that on certain divisive issues, the appointing president can be a reliable indicator of the likely outcome of a case.

This explains why Democratic senators are prepared to fight so hard to block key judicial nominees, and why Mr. Bush and his allies in the Senate are prepared to fight equally hard for their confirmation.

"Many studies have shown that there are significant differences between Republican and Democratic appointees on many kinds of issues," says Arthur Hellman of the University of Pittsburgh School of Law.

Where those ideological differences most often show up, scholars say, is in the kinds of hot-button issues that attract significant public and media attention: abortion, capital punishment, affirmative action, environmental regulation, and discrimination based on race, sex, or disability.

Some legal analysts reject this view, saying it undermines the credibility of the judiciary. "I think it is a mistake to pay too much attention to the political party of the appointing president because that helps create a false impression in the public's mind that judges are and should be political actors," says James Swanson, a senior legal scholar at the Heritage Foundation in Washington.

David Klein, a University of Virginia political science professor, disagrees. He says federal judges have become important policymakers within the US government. "There are going to be major cases where they are making important policy that affects many of us where we can assume that ideology is going to play a role," Professor Klein says. "On the other hand, most of what they do probably isn't driven by ideology."

Although national attention is usually centered on the US Supreme Court when it attempts to resolve heated social issues, such disputes are fought out at the district and appeals court levels first. The regional appeals courts decide more than 63,000 cases each year, while the Supreme Court agrees to hear only 80 to 90 cases per term.

"As the Supreme Court's docket dwindles, the regional circuit courts become even more the Supreme Courts for their regions," says Carl Tobias of the University of Richmond School of Law.

Appeals court cases can be resolved in two ways. Three-judge panels decide the vast majority of federal appeals. But in certain cases, a panel decision can be further appealed to the full circuit court for so-called "en banc" review.

Republican appointees outnumber Democratic appointees in every federal appeals court except the Second Circuit in New York City (seven Democratic appointees to six Republican), the Sixth Circuit in Cincinnati (six Democratic appointees to six Republican), and the Ninth Circuit (16 Democratic to eight Republican).

The Democratic advantage in both the Second and Ninth Circuits appears secure, at least in the short term. There are no current vacancies in the Second Circuit and only four vacancies in the Ninth.

The Sixth Circuit is a different story. There are currently four vacancies, more than enough to swing the court solidly in a more conservative direction.

But there is more behind the 6-6 deadlock than concern about a possible ideological shift. Three of the four vacancies date from the Clinton presidency. Republican senators had stalled Clinton nominees, and now Senate Democrats are stalling Bush nominees.

And during this time, the Cincinnati-based court has become quite a battleground. In 2002, controversy arose over alleged manipulation of the composition of the court during an appeal involving affirmative-action programs at the University of Michigan. A petition seeking en banc review was allegedly kept secret by the chief judge at the time, who had been appointed by a Democrat, until two Republican-appointed judges took senior status, which made them ineligible to participate. (The appeals court subsequently voted 5 to 4 to uphold the affirmative-action plan.)

At the same time, Senate Democrats were reportedly being urged by one of the parties in the affirmative-action cases to postpone consideration of any Bush nominees for the Sixth Circuit until after the en banc decision. An internal 2002 memo to Sen. Edward Kennedy of Massachusetts says in part: "The thinking is that the current 6th Circuit will sustain the affirmative action program, but if a new judge with conservative views is confirmed before the case is decided, that new judge will be able, under 6th Circuit rules, to review the case and vote on it."

The Sixth Circuit episode illustrates how even a single appointment might help shape the course of US law.

Another key judicial battleground is the District of Columbia Circuit, long considered the second most important court in the nation after the Supreme Court because of the significant cases challenging administration policies that arrive on its docket. It is also considered a training ground for future Supreme Court justices. Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg all served on the D.C. Circuit.

At present the D.C. Circuit consists of five Republican appointees, four Democratic appointees, and three vacancies.