Wednesday, October 29, 2008

Full Court Shuffle

Concern about federal court appointees has reached a crackling pitch.

In his recent op-ed, Stephen Calabresi warns against an Obama presidency that could, he says, shift federal courts dramatically to the left. But that's not the whole story.

He begins by noting that while Reagan appointed 8 judges to the D.C. Court of Appeals, George W. Bush was able to appoint only four. That's true. But it's no loss of conservative influence, given that Clinton appointed only two.

In the past 30 years, that court has received a dozen Republican appointees and only two Democratic ones, both older judges likely to retire soon. The existing two vacancies, plus replacement of at most four older Republican retirees, is hardly going to swing the conservative tilt of the past 30 years.

Calabresi also overlooks that of the 13 courts of appeal, only one has a majority of Democratic appointed judges. George W. Bush bragged about appointing more than
 a third of federal appeal judges now serving. When he began his time in office, a majority of federal judges were already Republican appointees.

Yes, I know the above the link is to the New York Times, which conservatives like to trash. But I'm citing it for factual reference, not opinion. If you feel the Times is wrong about the above facts - that George W. Bush actually did not speak with pride about his large number of appointments, or that most appellate courts actually have more Democratic appointees - feel free to speak up.

In truth, it's extremely rare for any of the major papers to have their facts wrong, whether the Wall Street Journal or the New York Times. What's common is to get only part of the story, and that's what the Calabresi offered in his op-ed.

He even went so far as to imply that Obama could tip the balance of the Supreme Court, noting the advanced age of several justices. But he doesn't cite them by name, a convenient oversight when you realize that by far the oldest justice is the most liberal, John Paul Stevens (age 88). If Obama replaces him with a liberal, the court balance changes not one bit.

The next oldest: liberal Ruth Ginsburg, age 75. The only other Democratic appointee on the court, Stephen Breyer, is 70. (The recent slew of 5-4 decisions include a fourth 'liberal' vote from David Souter, a Reagan appointee. He's 69.) Kennedy and Scalia are 72, though in such health that very few expect either of them to retire soon.

How old are the most recent Republican appointees? Clarence Thomas, 60; Samuel Alito, 58; and Chief Justice John Roberts, 53.

The plain truth is that a McCain win could dramatically alter the balance of the courts by pushing it to the right, while an Obama win can only check the swing, not reverse it.

Calabresi's colleague, David McIntosh, the other co-founder of the Federalist Society, is more complete in his assessment, saying that the nation's appeals courts were more conservative "than certainly any other time in my life."

So call a spade a spade: what an Obama win really risks is bringing the federal appeals courts a little closer to the Reagan era.


  1. Ruth Ginsberg just found she had cancer. Her retirement wouldn't change the court balance but it means the sitting President does matter at all times. Imagine if it were Scalia.

    >When he began his time in office, a majority of federal judges were already Republican appointees.

    Is that true? If so then I understand the point. But it's surprising.

  2. It is true, and it reflects the timing of appointments. Since most pre-Reagan appointees have retired, we've had 18 years of Republican postings versus only 8 years of Democratic ones.

    It's difficult to find a non-liberal link to share on this, since conservative sites tend not to advertise that the federal system already favors them. There's plenty of information from liberal sources, but any skeptics are likely to dismiss the NYT and the Huffington Post, or even Slate, all of which detail the numbers.

    That's a shame, because although major papers do "spin" their perspective, their facts are generally accurate. The New York Times and the Wall Street Journal might have different views on whether or not the current numbers are "balanced," but they'll count the same number of Republican and Democratic appointees.

    That said, I won't rely on them as sole sources, given the general skepticism. So here are two links to law sites, both noting the majority of conservative appointments: