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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.

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Although national attention is usually centered on the US Supreme Court when it attempts to resolve heated social issues, such disputes are fought out at the district and appeals court levels first. The regional appeals courts decide more than 63,000 cases each year, while the Supreme Court agrees to hear only 80 to 90 cases per term.

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"As the Supreme Court's docket dwindles, the regional circuit courts become even more the Supreme Courts for their regions," says Carl Tobias of the University of Richmond School of Law.

Appeals court cases can be resolved in two ways. Three-judge panels decide the vast majority of federal appeals. But in certain cases, a panel decision can be further appealed to the full circuit court for so-called "en banc" review.

Republican appointees outnumber Democratic appointees in every federal appeals court except the Second Circuit in New York City (seven Democratic appointees to six Republican), the Sixth Circuit in Cincinnati (six Democratic appointees to six Republican), and the Ninth Circuit (16 Democratic to eight Republican).

The Democratic advantage in both the Second and Ninth Circuits appears secure, at least in the short term. There are no current vacancies in the Second Circuit and only four vacancies in the Ninth.

The Sixth Circuit is a different story. There are currently four vacancies, more than enough to swing the court solidly in a more conservative direction.

But there is more behind the 6-6 deadlock than concern about a possible ideological shift. Three of the four vacancies date from the Clinton presidency. Republican senators had stalled Clinton nominees, and now Senate Democrats are stalling Bush nominees.

And during this time, the Cincinnati-based court has become quite a battleground. In 2002, controversy arose over alleged manipulation of the composition of the court during an appeal involving affirmative-action programs at the University of Michigan. A petition seeking en banc review was allegedly kept secret by the chief judge at the time, who had been appointed by a Democrat, until two Republican-appointed judges took senior status, which made them ineligible to participate. (The appeals court subsequently voted 5 to 4 to uphold the affirmative-action plan.)

At the same time, Senate Democrats were reportedly being urged by one of the parties in the affirmative-action cases to postpone consideration of any Bush nominees for the Sixth Circuit until after the en banc decision. An internal 2002 memo to Sen. Edward Kennedy of Massachusetts says in part: "The thinking is that the current 6th Circuit will sustain the affirmative action program, but if a new judge with conservative views is confirmed before the case is decided, that new judge will be able, under 6th Circuit rules, to review the case and vote on it."

The Sixth Circuit episode illustrates how even a single appointment might help shape the course of US law.

Another key judicial battleground is the District of Columbia Circuit, long considered the second most important court in the nation after the Supreme Court because of the significant cases challenging administration policies that arrive on its docket. It is also considered a training ground for future Supreme Court justices. Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg all served on the D.C. Circuit.

At present the D.C. Circuit consists of five Republican appointees, four Democratic appointees, and three vacancies.