Federal Bench at a Tipping Point ; Thirty-One of 179 Federal Appeals Judgeships Are Open, Giving Bush the Possibility to Tilt the Courts to the Right

Article excerpt

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 appeals.

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 affirmative action.

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 bench.

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 here."

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. …

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