Conservatives Have Reshaped Appeals Courts
Earlier this month, Mr. Bush pointed with pride to his record at a conference sponsored by the Cincinnati chapter of the Federalist Society, the elite network for the conservative legal movement. He noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and represents one of his most enduring accomplishments. While a two-term president typically leaves his stamp on the appeals courts — Bill Clinton appointed 65 judges, Mr. Bush 61 — Mr. Bush’s judges were among the youngest ever nominated and are poised to have an unusually strong impact.
They have arrived at a time when the appeals courts, which decide tens of thousands of cases a year, are increasingly getting the last word. While the Supreme Court gets far more attention, in recent terms it has reviewed only about 75 cases a year—half what it considered a generation ago. And Mr. Bush’s appointees have found allies in likeminded judges named by Mr. Bush’s father and Mr. Reagan.
Republican-appointed judges, most conservatives, are projected to make up about 62 percent of the bench next Inauguration Day, up from 50 percent when Mr. Bush took office. They control 10 of the 13 circuits, while Democrat-appointed judges have a dwindling majority on just one circuit.
David M. McIntosh, a co-founder and vice-chairman of the Federalist Society, said the nation’s appeals courts are now more in line with a conservative judicial ideology than at any other time in memory.
“The level of thoughtfulness among sitting judges on constitutional theory and the role of judges is higher than certainly any other time in my life,” said Mr. McIntosh, a former Reagan legal team member and Indiana congressman. “For somebody who has spent a lot of my life promoting those ideas, it’s very encouraging to see.”
The consequences of the evolving judiciary are only beginning to play out...
They have been more likely than colleagues to favor corporations over regulators and people alleging discrimination, and government over people who said their rights had been violated. They have also been more likely to throw out cases on technical grounds, like rejecting plaintiffs’ standing to sue.
Mr. McIntosh defended that record, saying the conservative judges are bringing a neutral application of the law to a judiciary that liberals had politicized. But Nan Aron of the Alliance for Justice, a liberal legal group, said that Mr. Bush had “packed the courts” with “extremists” who share an agenda of hostility to regulations and the rights of women, minorities and workers...
An Obama victory could roll back the Republican advantage on the appeals courts and even create a Democratic majority by 2013, according to a study of potential upcoming vacancies by Russell Wheeler of the Brookings Institution. But if Mr. McCain wins, Republicans could achieve commanding majorities on all 13 circuits...
A study in 2006 confirmed that the jurists appointed by Republicans beginning with the Reagan administration are, as the Federalist Society’s president, Eugene Meyer, put it, “a very different type of judge.”
The study, overseen by Cass Sunstein, a Harvard Law School professor who is now an adviser to Mr. Obama, analyzed whether judges voted for a liberal or a conservative outcome in 20,000 appeals court cases.
It found that as a group, the appeals court judges appointed by Dwight Eisenhower, Richard Nixon and Gerald Ford voted for a conservative outcome in 52 percent of their cases. Mr. Clinton’s judges had an identical record.
By contrast, the appeals court judges appointed by Mr. Reagan and the two Bush administrations took the conservative position in 62 percent of cases. And the number was larger in certain ideologically charged areas, like abortion, affirmative action, environmental protection and whether states have sovereign immunity from federal lawsuits.
Conservatives Have Reshaped Appeals Courts
WASHINGTON — After a group of doctors challenged a South Dakota law forcing them to inform women that abortions “terminate the life of a whole, separate, unique living human being” — using exactly that language — President Bush’s appointees to the federal appeals courts took control.
A federal trial judge, stating that whether a fetus is human life is a matter of debate, had blocked the state from enforcing the 2005 law as a likely violation of doctors’ First Amendment rights. And an appeals court panel had upheld the injunction.
But this past June, the full Court of Appeals for the Eighth Circuit voted 7 to 4 to overrule those decisions and allow the statute to take immediate effect. The majority argued that it is objectively true that human life begins at conception, and that the state can force doctors to say so.
Mr. Bush had appointed six of the seven judges in the conservative majority. His administration has transformed the nation’s federal appeals courts, advancing a conservative legal revolution that began nearly three decades ago under Ronald Reagan.
posted by Whitney Tilson at 10:17 PM
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