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.
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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)
[Bush's Legacy on Courts: How the federal courts of appeal have changed, 2001-2008]

Writing cynically this year in a landmark ruling allowing government access to private e-mail traffic without prior notice, Martin said "heaven forbid" that the majority should require the government "to abide by the mandates of the Bill of Rights." Judge Jeffrey S. Sutton, a Bush appointee, fired back, calling the criticism "a bit overwrought." The majority, he wrote, had no intent to degrade civil rights, only to rule on the facts at hand.

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When Bush sought this year to summarize the fruits of his judicial appointments, he chose to do it here in Cincinnati, at an October meeting of the local chapter of the conservative Federalist Society. "Judges matter," Bush said, explaining that his nominees were selected because they would "not use the courts to invent laws or dictate social policy." They should, he said, "exercise their power prudently, cautiously or, some might even say, conservatively."

The 16 judges on the 6th Circuit have the final voice in nearly all federal appellate litigation in Michigan, Ohio, Kentucky and Tennessee, deciding more than 2,700 cases a year. Although Bush's seven appointees to the circuit almost always vote together, only two attracted any controversy during confirmation hearings on Capitol Hill, while the rest were approved by voice vote or tallies of 95 or 96 to 0.

"Democrats [in Congress] don't care about this issue" as much as Republicans do, said Nan Aron, president of the liberal Alliance for Justice, a coalition of more than 70 groups that lobbies against conservative judicial appointments. "They didn't under Reagan, and they don't care today."

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) has said his panel carefully vets all nominees. He has boasted that the committee has treated Bush's nominees "more fairly than Republicans treated President Clinton's" and has successfully halved the number of federal judicial vacancies at the beginning of Bush's term by acting speedily on nominations.

One of the exceptions to the mostly unanimous support was Sutton, who attracted 45 negative votes. Today he is the intellectual engine behind some of the majority's more controversial rulings. Sutton, a former chief solicitor for the state of Ohio, attracted conservative support before his nomination by consistently pressing for states' rights and challenging enforcement at the federal level of civil rights and disabilities laws.

Sutton was the principal author of the 6th Circuit's final decision in the Arnold case, rejecting the inmate's appeal for a new trial. Arnold was arrested in 2002 after his girlfriend's daughter called 911 to say he threatened to shoot her. Arnold, a high school dropout, had spent a good portion of his adult life behind bars after convictions at age 19 for assault, at 22 for grand larceny and at 24 for murder.

His arrest for possessing a handgun -- found under the front seat of a car used by Arnold and his girlfriend -- occurred four months after he left prison. At trial, however, prosecutors presented no evidence that the gun was his, and the daughter's accusations to police were admitted at trial even though she refused to testify. She told a private investigator that Arnold had no gun, but that recantation was never disclosed to the jury.

Sutton was initially outvoted on a panel when one other Republican appointee and Karen Nelson Moore, a Democratic appointee, said Arnold's conviction was unjust.

"I finally got justice -- that's what I thought," Arnold said in a telephone call from prison.

Then the government appealed. Sutton wrote the en banc majority opinion, which in reversing the verdict said the evidentiary issues were not particularly egregious mistakes and did not seriously affect the trial's fairness.


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