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Conservatives near lock on US courts

Senators will consider new judicial nominees Thursday. GOP-appointed judges already control 10 of 13 appeals courts.

By Staff writer of The Christian Science Monitor / April 14, 2005

As Democrats and Republicans in Washington prepare for an expected showdown over the use of filibusters to stall judicial nominees, President Bush is already well on his way to recasting the nation's federal appeals courts in a more conservative mold.

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Republican appointees now constitute a majority of judges on 10 of the nation's 13 federal appeals courts. As few as three more lifetime appointments on key courts would tip the balance in favor of GOP appointees on all but one appeals court - the Ninth US Circuit Court of Appeals in San Francisco.

The confrontation over judges heats up Thursday with the Senate Judiciary Committee expected to send a second appeals court candidate to the full Senate for a possible vote. The process is being closely watched because if either nomination triggers a filibuster, it could provide the vehicle for Republican senators to launch the so-called nuclear option, which would squelch filibusters.

It will be up to Senate majority leader Bill Frist to decide when to schedule a floor vote on Thomas Griffith, nominated to the US Court of Appeals for the District of Columbia Circuit. William Myers, a nominee to the Ninth Circuit, is also pending a floor vote.

Even if Republicans refrain from a nuclear option in these proceedings, legal analysts say the Bush administration is already accomplishing a significant shift within the federal judiciary. By winning a second term, he is well positioned to leave a presidential legacy that could take Democrats a decade or more to reverse.

The lineup of appeals court judges based on which president appointed them is a somewhat crude measure of the shifting ideological influences within federal courts. Not every Republican appointee votes conservative. Nor are Democratic appointees automatically liberal. But judicial scholars say that on certain divisive issues, the appointing president can be a reliable indicator of the likely outcome of a case.

This explains why Democratic senators are prepared to fight so hard to block key judicial nominees, and why Mr. Bush and his allies in the Senate are prepared to fight equally hard for their confirmation.

"Many studies have shown that there are significant differences between Republican and Democratic appointees on many kinds of issues," says Arthur Hellman of the University of Pittsburgh School of Law.

Where those ideological differences most often show up, scholars say, is in the kinds of hot-button issues that attract significant public and media attention: abortion, capital punishment, affirmative action, environmental regulation, and discrimination based on race, sex, or disability.

Some legal analysts reject this view, saying it undermines the credibility of the judiciary. "I think it is a mistake to pay too much attention to the political party of the appointing president because that helps create a false impression in the public's mind that judges are and should be political actors," says James Swanson, a senior legal scholar at the Heritage Foundation in Washington.

David Klein, a University of Virginia political science professor, disagrees. He says federal judges have become important policymakers within the US government. "There are going to be major cases where they are making important policy that affects many of us where we can assume that ideology is going to play a role," Professor Klein says. "On the other hand, most of what they do probably isn't driven by ideology."