It usually takes years for a new president to be in a position to
shift the balance of power among the judges on a federal court of
But George W. Bush can do it right now in a Cincinnati-based
circuit court that in recent years has become a magnet for hot-
button issues like school vouchers, campaign-finance reform, and
With five vacancies on the 16-judge US Court of Appeals for the
Sixth Circuit and two more expected by summer's end, the court
could soon emerge as ground zero in the much anticipated fight over
President Bush's nominees to the federal bench.
A similar fight is likely over the composition of the 10th US
Circuit Court of Appeals in Denver, where Mr. Bush has an
opportunity to eliminate a 5-to-4 Democratic appointee advantage.
Two seats are open, and another is expected to be vacant soon.
But these two circuits are just the beginning. Overall, with 31
of the nation's 179 appeals-court judgeships open, Bush is in an
unprecedented position to install or significantly bolster a
Republican majority of lifetime-appointed judges in all but two of
the nation's 13 appeals courts.
"This was the big prize in the presidential election. As went the
presidency, so goes the judiciary," says Clint Bolick, legal
director of the conservative Institute for Justice in Washington.
The stage is set for what many Republicans hope will become a
concerted effort by the Bush administration to tip the balance of
the judiciary, circuit by circuit, in a conservative direction.
The Democratic leadership in the evenly divided US Senate is
pledging to do all it can to prevent a judicial shift to the right,
saying that the president should appoint moderates to the federal
How this presidential-congressional clash over the future
composition of the courts plays out is unclear. But the stakes for
both sides are high.
The only two appeals courts where Democratic-appointed judges are
not under immediate risk of being outnumbered are the Ninth
Circuit, based in San Francisco, and the Second Circuit, based in
New York City.
Although not as high profile as US Supreme Court justices,
appeals court judges are becoming increasingly powerful. The
Supreme Court has opted in recent years to take up fewer and fewer
cases, which means that for the vast majority of Americans the de
facto court of last resort is a circuit court of appeals.
"The federal judiciary has an enormous effect on the lives of
every American, whether people realize it or not," says Elizabeth
Dahl of the Constitution Project in Washington. "Only a small
percentage of the decisions they make will ever be reviewed by a
higher court - civil rights, employment law, the environment,
states' rights, civil liberties issues, they are all at stake
The party affiliation of an appointing president by no means
guarantees a particular ruling in a particular case. But legal
analysts say as a broad measure, presidential appointments can be
an important indication of the direction of the courts. …