Obama Will Carve Name on Federal Bench

Deb Price
Mon, 16 Mar 2009 00:00:00 -0700
Opinion

Want a hint of just how much President Obama's eventual appointees will change the nation's federal appeals courts? Take a peek at a tip sheet offered by a scholar at the Brookings Institution.

Just before the November elections, Russell Wheeler, a visiting fellow at Brookings and prominent court watcher, calculated what impact the victor could have in one term over these hugely powerful federal courts.

A John McCain presidency, he estimated, would result in all 13 federal courts of appeals having Republican majorities, with 11 of those being "solid majorities."
Updated: Sun Mar 15, 2009

Want a hint of just how much President Obama's eventual appointees will change the nation's federal appeals courts? Take a peek at a tip sheet offered by a scholar at the Brookings Institution.

Just before the November elections, Russell Wheeler, a visiting fellow at Brookings and prominent court watcher, calculated what impact the victor could have in one term over these hugely powerful federal courts.

A John McCain presidency, he estimated, would result in all 13 federal courts of appeals having Republican majorities, with 11 of those being "solid majorities."

McCain — under Wheeler's projections, based largely on anticipated retirements, eventual creation of 14 new appeals court judgeships and confirmation of the president's nominees — would have left the appeals courts with far more Republican appointees calling the shots: 74 percent Republican to only 26 percent Democratic.

That level of one-party dominance of the courts hasn't been seen since 1953, "after 20 years of Roosevelt and Truman appointees," Wheeler notes.

Instead, Obama will have the opportunity to change the ideological flavor of the courts, currently made up of 55 percent Republican appointees and 36 percent Democratic appointees, with 9 percent vacancies.

Wheeler calculates that in a single presidential term, Obama appointees could flip the advantage to the Democrats, with Democratic appointees at 58 percent and Republican appointees at 42 percent.

"Under Obama, courts (of appeals) with solid Democratic majorities would go from none to four; those with slight Democratic appointee majorities would go from one to four," Wheeler predicted.

"Courts with slight Republican appointee majorities would drop from four to two, and those with solid Republican appointee majorities would drop from six to one."

The U.S. Supreme Court takes only about 70 cases a year, so these appeals courts are the final referees in the lion's share of federal legal disputes.

For the still-young lesbian, gay, bisexual and transgender rights movement, the makeup of these appeals courts is critical.

Already in the federal courts are challenges to the ban on openly gay members of the military and to part of the 1996 law prohibiting gay married couples from receiving federal benefits.

If Congress and the president expand hate-crime and workplace protections to include sexual orientation and gender identity, appeals court judges will be play a huge role in enforcing those safeguards.

"Never underestimate the importance of having a fair judiciary at every level," says gay rights litigator Kevin Cathcart of Lambda Legal.

Lambda has urged the Obama team to ensure its judicial nominees respect Romer v. Evans and Lawrence v. Texas — groundbreaking Supreme Court decisions recognizing that gay Americans are entitled to equal protection under the U.S. Constitution — and to quickly fill federal vacancies but not overlook qualified LGBT lawyers.

In "The Audacity of Hope," Obama eloquently shared his thoughts on the tug-of-war that has erupted over courts, reflecting clashing views on how judges should treat the Constitution.

Siding with those who see the U.S. Constitution as a "living document," Obama, a former law professor, writes, "The Constitution envisions a road map by which we marry passion to reason, the ideal of individual freedom to the demands of community. And the amazing thing is that it's worked."

Obama's Aloha cool repeatedly will be tested as he carves his name on the federal bench.