The Politics of the Federal Bench

By Jerry Markon
Washington Post Staff Writer
Monday, December 8, 2008

The federal judiciary is on the verge of a major shift when President-elect Barack Obama's nominees take control of several of the nation's most important appellate courts, legal scholars and political activists say. With the Supreme Court's conservative direction unlikely to change anytime soon, it is the lower courts -- which dispense almost all federal justice -- where Obama can assert his greatest influence.

The change will be most striking on the Richmond-based U.S. Court of Appeals for the 4th Circuit, long a conservative bastion and an influential voice on national security cases, where four vacancies will lead to a clear Democratic majority. Democrats are expected to soon gain a narrower plurality on the New York-based 2nd Circuit, vital for business and terrorism cases, a more even split on the influential D.C. appeals court and control of the 3rd Circuit, which covers Pennsylvania and New Jersey.

Although Republican control will probably persist on a majority of appellate courts for at least several years, some experts say that by the end of Obama's term, he and the Democratic Congress will flip the 56 percent majority Republican nominees now exert over those highly influential bodies.

"Obama has a huge opportunity," said Arthur Hellman, a University of Pittsburgh law professor who is an authority on federal courts. "In a very short time, significant segments of the appellate courts, which are the final authority in all but a tiny handful of cases, will be dominated by Democratic nominees."

The new judges might gradually reshape what many see as a conservative drift in the courts under the Bush administration and issue more moderate-to-liberal rulings in the ideologically charged cases that have fueled the struggle for control of the judiciary. Many judges are independent, and party affiliation is not a perfect predictor of their behavior. Still, studies have shown that Democratic and Republican nominees vote differently on such cultural issues as abortion and gay rights, along with civil rights, environmental law and capital punishment.

The pace of change will depend not only on how long Democrats keep control of the presidency but also on the ideology of Obama's nominees. Although his Cabinet choices have won praise from Republicans as centrist, Obama's past statements indicate a generally liberal judicial philosophy, one that favors Supreme Court justices and other judges who back abortion rights.

"What I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being . . . dealt with sometimes unfairly," Obama, a former constitutional law professor, said in a May interview with CNN.

A spokesman for Obama's transition office declined to comment.

Energized by Obama's victory, liberal groups are pressing for nominees to their liking. "The voters have sent a mandate to the new president that we can restore balance to the federal courts, and we're confident that will occur," said Kathryn Kolbert, president of People for the American Way, which has been in touch with transition officials. She vowed to prevent "extremists on the right from hijacking the process."

Conservatives said they are hoping for moderate nominees but worry that "judges will be an issue where Obama throws a lot of crumbs to his political base," said Curt Levey, executive director of the Committee for Justices, which advocates a conservative judiciary. "People are worried. Obama has been unusually unabashed about believing in an activist role for judges."

He called on Republican senators "to play hardball" in resisting Obama's nominees.

Senate Republicans, who retained enough seats in the November elections to filibuster judicial nominees, said they have not settled on a strategy. Democrats, who successfully blocked some of President Bush's 4th Circuit and other appellate nominees, said they will try to win Republicans' support but made it clear that they will push for quick confirmations.

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