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Correction to This Article
The article said that the Supreme Court had decided in a 2006 case that Paul Gregory House, convicted of murder in Tennessee, should receive a new trial. The court ruled that House should have a new hearing in federal court, and a federal judge later decided that he should be released pending a new trial.

Ideological Warfare Rages on Federal Appeals Courts Dominated by Republican Appointees

Seven of the 16 full-time judges on the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, were appointed by President Bush. (The photo includes some of the part-time senior judges.)
Seven of the 16 full-time judges on the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, were appointed by President Bush. (The photo includes some of the part-time senior judges.) (Courtesy Of Cincinnati Enquirer)

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[Bush's Legacy on Courts: How the federal courts of appeal have changed, 2001-2008]
By R. Jeffrey Smith
Washington Post Staff Writer
Monday, December 8, 2008

CINCINNATI -- In June 2005, two federal appellate judges here ordered Joseph Arnold released from a 21-year prison sentence after ruling that there was no credible evidence he had threatened to shoot his girlfriend's daughter with a pistol.

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But Arnold's relief was fleeting. Prosecutors appealed to all of the judges on the U.S. Court of Appeals for the 6th Circuit. And the full court, dominated by appointees of President Bush and other Republican presidents, reversed the initial appellate ruling, saying the evidence presented by prosecutors was sufficient to merit Arnold's conviction.

Other criminal defendants, including some on death row, remain in federal prisons for the same reason: After initial appellate verdicts that their convictions or sentences were unjust, the last word came from Bush's judicial picks on the 6th Circuit. Acting in cooperation with other Republican appointees on the court, they have repeatedly organized full-court rehearings to overturn rulings by panels dominated by Democratic appointees.

Although the impact of Bush's judicial appointments is most often noticed at the Supreme Court, it has played out much more frequently and more importantly here and in the nation's 12 other appellate courts, where his appointees and their liberal counterparts are waging often-bitter ideological battles. After Bush's eight years in office, Republican-appointed majorities firmly control the outcomes in 10 of these courts, compared with seven after President Bill Clinton's tenure. They also now share equal representation with Democratic appointees on two additional courts.

Although exceptions exist, of course, independent legal scholars say Bush's picks in particular have been more likely than Democratic appointees to uphold the positions of police and prosecutors, and less likely to alter verdicts because of procedural and legal mistakes in handling defendants.

Under 6th Circuit rules, full court, or "en banc," hearings are allowed in order to ensure "uniformity of the court's decisions" when separate panels of three randomly appointed judges disagree, or when questions of "exceptional importance" are at stake. But some of the court's Democratic appointees allege that the Republican-appointed majority is grabbing and reversing cases whenever those judges disapprove of the social consequences of the Democratic appointees' rulings.

"Anytime two of us show up on a panel and they don't like it, they yank it," said one Democratic-appointed judge on the circuit, who spoke on the condition of anonymity to avoid directly provoking colleagues.

That may be only a slight exaggeration, according to a Washington Post review of all of the circuit's en banc rulings in the past decade. In the past five years, initial verdicts by panels dominated by Democratic appointees were clearly reversed by Bush's appointees and other Republican picks 17 times, out of 28 decisions issued by the full court.

In these cases, the majority upheld death sentences, ruled that the courts could rely on evidence that some justices said was tainted, declared that certain prisoners were not entitled to the appointment of counsels, rejected several constitutional claims, upheld a Bush administration regulation, ruled that disability payments were unwarranted, and refused several requests for criminal retrials.

Ideological trench warfare is frequently on display in the 6th Circuit's austere fourth-floor hearing room in the Potter Stewart Courthouse here, which shifted to Republican-appointee control in mid-2005. Rulings sling around words such as "absurd," "rash," "meritless," "Pollyannaish," "unconscionable," "careless," "overwrought" and "alarming" -- from jurists on each side, directed at the judgments of colleagues appointed by the other political party. Tensions between Democratic and Republican appointees have become so intense that they no longer regularly lunch together at the city's University Club.

Chief Judge Danny Boggs, an appointee of President Ronald Reagan and member of the U.S. Judicial Conference's executive committee, said Republican and Democratic appointees across the nation "on average" have looked at criminal and employment-related cases differently. He said, however, that party affiliation is not uniformly predictive, noting that he has occasionally sided with Democratic appointees and that most rulings by three-judge panels are unanimous.

Others see a sharp divide. Boyce Martin, an appointee of President Jimmy Carter who was Boggs's predecessor as chief judge, has complained in dissents, for example, that the new majority takes great pains to "legalize unlawful police conduct" by overlooking it or wishes for the "expansion of police powers beyond what the Constitution allows."


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