Standing for Change in the Courts? Good Luck.

By Al Kamen
Friday, May 9, 2008

Sen. John McCain (R-Ariz.) made it clear this week that he's just itching to get into the Oval Office to end "the common and systematic abuse of our federal courts" by out-of-control, wackadoodle, ACLU-loving judges.

But that mission's going to be harder than he thinks. When he (or Sen. Barack Obama, his soon-to-be opponent) takes office in January, a very small number of judicial opportunities will be awaiting. According to the U.S. Federal Judicial Center, there are only 13 vacancies on the 179-member federal courts of appeal and only 35 openings among the 674 district or trial judges.

The number of openings may increase by Inauguration Day -- a few seats are vacated each month -- but they could be offset if the Democratic-controlled Senate is persuaded to fill a few appellate seats and perhaps as many as 10 district court seats. Hard to imagine they're going to do more, given the constant bitterness between the parties over judges.

Contrast those paltry numbers with what the Republican-controlled Senate left for President Bush. Shortly after he took the oath in 2001, there were about 30 appeals court vacancies and about 55 district court seats to fill.

The next president will find the federal bench solidly controlled by the GOP, with about 100 Republicans in appeals court seats, compared with approximately 66 Democrats. Republicans have a 56 percent majority at the trial court level.

At least for the first couple of years, McCain would probably find the number of Republican retirees far outnumbering Democrats. Forty-six of the 53 longest-serving appeals judges are GOP appointees. In contrast, were Obama to win, he would have a golden opportunity to replace them with liberal court-abusers. McCain, at least for a chunk of his first term, would only be treading water.

But his prospects for immediate impact would improve dramatically under a bill just proposed by Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) that would create 12 appeals court seats and 38 district court seats.

But there would be a huge silver lining for President McCain. He might have the chance to solidify GOP control of the big prize, the Supreme Court, for many years to come. The senior liberal, Justice John Paul Stevens, just turned 88, although he's still golfing and, we hear, maybe playing a little tennis.

A second liberal opening might come from Justice Ruth Bader Ginsburg, who is 75. McCain also might be able to replace conservative justices Antonin Scalia, 72, and Anthony Kennedy, 71, with younger Republicans. If everything worked out, McCain could create a court with a seven-member conservative majority whose oldest member would be Clarence Thomas, who turns 60 next month.

That would take care of the abusers.

[Quick Loop Quiz! Who is the lone remaining district court judge appointed by President Lyndon B. Johnson? Ahhh, you guessed it. He is trial Judge Manuel L. Real, 84, of Los Angeles, a controversial jurist who took the bench on Nov. 3, 1966.]

Lawbreakers in Robes

Speaking of the Senate Judiciary Committee, some members are going that extra mile to make sure the black-robed crowd is upstanding and law-abiding. The committee held a nominations hearing Wednesday for a three-seat compromise package of judges: Detroit U.S. Attorney Stephen J. Murphy for a district court seat; Republican lawyer Raymond Kethledge for a 6th Circuit U.S. Circuit Court of Appeals seat; and Helene White, a former Clinton nominee and Michigan state court judge, for a second seat on that appeals court.

Sen. Jon Kyl (R-Ariz.), explaining that he wants to know about any "matters that would demonstrate a lack of respect for the law," asked the trio about "bad debts, late payments . . . credit cards, student loans, taxes, tickets . . ."

White said that she is clean on most counts and that "I try to abide by the rules of the road at all times, and at times I have had lapses and have received tickets, yes. . . ."

". . . I did have a few speeding tickets a long time ago," Kethledge admitted.

"I've definitely sped and paid my tickets," Murphy said. He also humbly confessed to once being told by the IRS that he owed more money, which he quickly paid.

Kyl seemed satisfied, but Sen. Arlen Specter (R-Pa.) later grilled White.

"Judge White, you testified that you, quote, abide by the rules of the road, sometimes you have not, close quote," Specter said. "Could you expand upon when and under what circumstances you have not?

"I have tried to abide by the speed limit," White answered. "There are times when . . ."

"Have you, on occasions, not abided by the speed limit?" Specter asked. "You mentioned that."

"Yes, sir," White confessed, "there are times when I have exceeded the speed limit."

"Anything else related to the rules of the road?" Specter asked.

Leahy came the rescue. ". . . I hope we do not set a standard that nobody can be a federal judge if they've ever driven over the speed limit," he said. If senators were similarly judged, "it's going to be a pretty darn empty chamber around here."

Wait a minute! What about jaywalking? Not fully stopping at a four-way late at night?

Thanks, I'm Comfortable Here

On that note, Rep. Vito Fossella (R-N.Y.), with his arrest for drunk driving and his confession to fathering a child with his longtime mistress, becomes immediately eligible for membership in one of the most exclusive clubs in Congress: "The Guys Who Just Won't Leave Caucus."

The membership might include, to name a few: Sen. Larry Craig (R-Idaho), who's serving out his term this year even though he pleaded guilty to disorderly conduct in that sting in the Minneapolis airport bathroom; Sen. David Vitter (R-La.) of D.C. Madam fame; Rep. Rick Renzi (R-Ariz.), who was indicted in February for embezzlement and receiving payoffs; Rep. William "Cold Cash" Jefferson (D-La.), indicted on charges of soliciting bribes; and Rep. John Doolittle (R-Calif.), retiring but still around, who has been linked to criminal lobbyist Jack Abramoff.

Munny for Our Teechurs

The Senate Appropriations Committee announced yesterday it is putting $400 million into the FY 2008 supplemental for rural schools, explaining that: "Without this funding, almost 7,000 teachers and other educational staff will be layed off across the country as of June 30. . . ."

How Do I Look?

After Wednesday's column about a plan at the Department of Housing and Urban Development to renovate offices and relocate key officials -- who are a bit busy these days dealing with the housing mortgage mess -- acting Secretary Roy Bernardi toured the building and talked with employees. Yesterday, he asked local union officials to submit an alternative proposal, which they say will be cheaper and less disruptive.

Stay tuned.

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