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.

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.

In most cases, appeals are heard by a randomly selected three-judge panel. Such selection helps counteract the effect of a concerted effort by a president to pack the courts with judges of a particular judicial philosophy.

Nonetheless, the power of like-minded judges can be enormous, legal analysts say. That is because an appeals court may elect to decide any case deemed by a majority of the judges to have particular significance.

It is in such en banc hearings that the judicial philosophy of a majority of the judges - whether liberal or conservative - may mean the difference between victory or defeat for the litigants.

For example, the Sixth Circuit in Cincinnati will likely have an opportunity within the next year or two to rule on one of the most contentious legal issues facing the nation: the use of affirmative action in university admissions programs. At issue is whether the University of Michigan law school violated the equal-protection rights of white student applicants by adopting an affirmative-action admissions program aimed at attracting minority students to the school.

Under the current composition of the Sixth Circuit - with six judges appointed by Democratic presidents (who generally support affirmative action) and five appointed by Republicans (who generally oppose it) - an en banc review of the case might uphold the affirmative-action program by as little as one vote.

But that outcome would likely change if President Bush selects conservative judges to fill the seven vacant seats on the court.

"This is one of those issues where, unfortunately, partisanship does seem to affect how at least lower federal judges are deciding the case. So these appointments may make an important difference," says David Mayer, a law professor at Capital University Law School in Columbus, Ohio.

Senate Democrats say they are prepared to use the same combination of delaying tactics and outright obstruction employed by Senate Republicans last year to prevent many of President Clinton's appointees from reaching some of these same vacant judicial seats.

"This should be a process of comity and consensus," says Marcia Kuntz, who runs the judicial selection project for the liberal Alliance for Justice in Washington.

But she warns: "With the Senate this close, the Democrats do have a lot of leverage and have shown an inclination over the last couple of weeks to use it."

Thomas Jipping, director of the Center for Law and Democracy at the conservative Free Congress Foundation in Washington, says the key to success for Bush is personal involvement and a strong commitment to defend his nominees. "I think this is going to require some real and ongoing presidential leadership," he says.

(c) Copyright 2001. The Christian Science Monitor

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