Conservatives Have Reshaped Appeals Courts

http://www.nytimes.com/2008/10/29/us/29judges.html?_r=1&hp&pagewanted=print&oref=slogin

October 29, 2008
By CHARLIE SAVAGE
Earlier this month, Mr. Bush pointed with pride to his record at a conference sponsored by the Cincinnati chapter of the Federalist Society, the elite network for the conservative legal movement. He noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and represents one of his most enduring accomplishments. While a two-term president typically leaves his stamp on the appeals courts — Bill Clinton appointed 65 judges, Mr. Bush 61 — Mr. Bush’s judges were among the youngest ever nominated and are poised to have an unusually strong impact.

They have arrived at a time when the appeals courts, which decide tens of thousands of cases a year, are increasingly getting the last word. While the Supreme Court gets far more attention, in recent terms it has reviewed only about 75 cases a year—half what it considered a generation ago. And Mr. Bush’s appointees have found allies in likeminded judges named by Mr. Bush’s father and Mr. Reagan.

Republican-appointed judges, most conservatives, are projected to make up about 62 percent of the bench next Inauguration Day, up from 50 percent when Mr. Bush took office. They control 10 of the 13 circuits, while Democrat-appointed judges have a dwindling majority on just one circuit.

David M. McIntosh, a co-founder and vice-chairman of the Federalist Society, said the nation’s appeals courts are now more in line with a conservative judicial ideology than at any other time in memory.
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The Eighth Circuit, with headquarters in St. Louis, now has the highest Republican-appointed proportion — 9 of its 11 judges — in the nation. But while other circuits have also grown more conservative, none has yet produced a comparably startling outcome.

Appeals courts tend to change the law incrementally rather than in rapid shifts. They are constrained to follow Supreme Court precedent, and most of their work consists of unanimously disposing of routine cases.

Still, every year courts encounter some controversial cases in which they have greater discretion. In such circumstances, several studies have shown that judges appointed by Republican presidents since Mr. Reagan have ruled for conservative outcomes more often than peers.

They have been more likely than colleagues to favor corporations over regulators and people alleging discrimination, and government over people who said their rights had been violated. They have also been more likely to throw out cases on technical grounds, like rejecting plaintiffs’ standing to sue.

Mr. McIntosh defended that record, saying the conservative judges are bringing a neutral application of the law to a judiciary that liberals had politicized. But Nan Aron of the Alliance for Justice, a liberal legal group, said that Mr. Bush had “packed the courts” with “extremists” who share an agenda of hostility to regulations and the rights of women, minorities and workers.

“George W. Bush has made great strides in cementing the ultraconservative hold on the federal courts which began with Ronald Reagan in the 1980s, when he set out to impose his agenda on the country through his court appointments,” Ms. Aron said.

Mr. Bush’s commitment to moving the courts rightward has been important not only to elite conservative thinkers, but also to the social conservatives who have constituted his base of support.

His judicial selections set off fierce clashes with Senate Democrats. Until a compromise was brokered in 2005, Democrats blocked votes on several nominees for years. More recently, the Senate has not voted on Peter Keisler, a former Justice Department official who defended Mr. Bush's detainee policies. Still, most of Mr. Bush's nominees became judges. He is set to leave 15 vacancies, while Mr. Clinton left 27.

Conservative and liberal legal activists alike are trying to motivate voters to view the balance of the judiciary as a major issue in the coming election. Senator John McCain, the Republican presidential nominee, has promised to appoint judges in the same ideological mold as Mr. Bush did, while Senator Barack Obama, a Democrat, has said he will instead select judges with greater “empathy” for the disadvantaged.

An Obama victory could roll back the Republican advantage on the appeals courts and even create a Democratic majority by 2013, according to a study of potential upcoming vacancies by Russell Wheeler of the Brookings Institution. But if Mr. McCain wins, Republicans could achieve commanding majorities on all 13 circuits.