Court Watchers Anticipate First Of Obama Appointments, Look For Signs Of Ideological Stance

Main Category: Public Health
Also Included In: Litigation / Medical Malpractice
Article Date: 12 Mar 2009 - 3:00 PDT

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President Obama is expected to soon begin announcing a "small stream" of judicial nominees to the federal appeals courts, "a step that will provide the first signs of how much he intends to impose any ideological stamp on the nation's judiciary," the New York Times reports. White House lawyers have compiled lists of likely candidates for open seats on several of the country's 12 regional appeals courts, particularly the courts based in New York and Richmond, Va. Experts on the issue are "watching closely to see whether or how much" Obama will use his presidential power to select nominees "to counterbalance the evident rightward shift" of the federal courts under former President George W. Bush, the Times reports.

More than 60% of the judiciary is comprised of Republican-nominated judges, as the GOP has held control of the White House for 20 of the last 28 years, according to the Times. Republicans currently have control over eight of the regional appeals courts, with Democrats holding control over two circuits -- the U.S. Court of Appeals for the Second Circuit, based in New York, and the Ninth Circuit, based in San Francisco. The Philadelphia-based Third Circuit is split 6-6 and has two open seats, the Times reports. Arthur Hellman, a professor at the University of Pittsburgh School of Law and an authority on circuit courts, said studies have shown that Republican-appointed judges have moved the U.S. courts in a more conservative direction on several issues, including abortion rights.

According to the Times, the "earliest setting" for the issue of judicial ideology to play out is likely to be the U.S. Court of Appeals for the Fourth Circuit, which is based in Richmond and covers Virginia, Maryland, West Virginia, North Carolina and South Carolina. The Times reports that the court "appears on the verge of stark change," as it is divided by a small 6-5 majority of Republican-appointed judges after the retirements of several judges. On this court, Obama has "four vacancies to fill and the potential to drastically reshape the court," the Times reports. Hellman said that the Fourth Circuit is the most aggressive in terms of conservatism and that it is where Obama "has the greatest opportunity to turn around the jurisprudence pretty quickly." Judges in the Fourth Circuit have "taken the lead" in recent years in attempting to decrease federal power in several areas, according to the Times.

The Times reports that Gregory Craig, the White House counsel, has been organizing the process of selecting appeals court judges because many of the senior officials for the Justice Department have not been confirmed. The candidates currently under consideration do not seem to have "especially ideological profiles," according to the Times. Officials familiar with the situation said the White House is considering nominees including Andre Davis, a District Court judge based in Baltimore, and Elizabeth Magill, a University of Virginia law professor. In addition, District Court Judge Gerald Lynch, a Columbia University law professor, has been chosen as a nominee by the White House for the U.S. Court of Appeals for the Second Circuit. The officials spoke on condition of anonymity because the process of naming judges "involves a delicate political process involving senators, among others," the Times reports.

During a recent closed meeting on Capitol Hill, Craig told Democratic senators that the Obama administration would rely on their recommendations to fill the district court vacancies. However, Craig added that filling the empty seats on the courts was mainly a presidential prerogative. A senior aide briefed on the meeting said that an attempt to limit Democratic senators' role in the process could create tension but added that the White House typically tries to establish such an understanding at the beginning of the process and becomes more flexible when it needs a senator's support or vote on an unrelated issue. Obama also "faces a different threat" from Republican senators, who have vaguely threatened to block his judicial appointments by filibuster if they are not consulted on the vacancies within their home states, the Times reports. The Times reports that beneath "all the maneuvering is an awareness that much of it may serve as a dress rehearsal for the spring," when many believe Obama will have to fill a vacancy on the Supreme Court (Lewis/Weiser, New York Times, 3/11).

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