How Might the Obama Administration Affect the Composition of the U. S. Courts of Appeals?

President Obama yesterday announced his first judicial nomination: Southern District of Indiana Judge David Hamilton to fill the vacancy created by the September 2008 retirement of Seventh Circuit Court of Appeals Judge Kenneth Ripple, a Republican appointee.

The Hamilton nomination—and more anticipated in the coming months—has renewed interest in how Obama might change the composition of the federal courts in respect to judges appointed by Democratic and Republican presidents. This is an update of a report posted here last October: “What Will the Presidential Election Mean for the U.S. Courts of Appeals?” a brief assessment of how a McCain or Obama administration might affect the court of appeals’ composition.¹

Speculation continues about how President Obama might affect the composition of the United States Supreme Court (or how a President McCain might have affected that composition). The conventional wisdom has it that any seats that become vacant in the next four years are likely to be from the Court’s liberal bloc. By the conventional wisdom, given the closely divided Court, Obama appointees will maintain the status quo, while McCain appointees would have fortified the conservative bloc. Of course, speculation about vacancies is just that—as Justice Ginsburg’s quick return from February 2009 cancer surgery reminded those speculating about her replacement—and predictions of how a new justice might behave are risky.

But there’s more to the federal judiciary than the Supreme Court. Presidents appoint judges to the 678-judge district courts and 179-judge courts of appeals. The courts of appeals, one for each of the 13 federal judicial circuits, terminated over 62,000 cases in 2008, making them the federal courts of last resort except for those litigants granted review on the Supreme Court’s annual docket of less than 100 cases. How might President Obama affect the composition of the courts of appeals? How might a President McCain have done so? A definitive answer is impossible, but some reasonable estimates are not.

Before estimating, though, three caveats: First, most judges appointed by Democratic presidents are at least nominal Democrats, but not all are; the same goes for Republican appointees. Second, while Democratic and Republican appointees display different decisional tendencies, especially in such hot-button areas as environmental regulation, overall the differences in their voting have been relatively narrow, in the 10 to 15 percent range for cases that might have some ideological dimension.

Third, any three-judge panel of a court of appeals may include judges in addition to those serving full time in one of the statutorily created circuit judgeships. Judges may be assigned to sit temporarily on courts other than their own so panels on any court of appeals may include semi-retired “senior status” circuit or district judges from that or other circuits as well as district judges in active service from that circuit. So, even if we could predict with precision the make up of the full-time statutorily created circuit judgeships, we would not know the precise make up of the appellate judiciary on a daily basis.

Still, the composition of the 179 full-time circuit judges gives a fairly good picture of the courts of appeals. Two principal factors influence a president’s ability to affect that composition. One involves the number of vacancies the president is able to fill and whether the vacant seats had been held by Democratic or Republican appointees. If President Obama were only able to replace Democratic appointees, he obviously wouldn’t change the percentage of Democratic appointees on the courts of appeals. The other factor is whether Congress provides the president any new judgeships to fill in addition to vacancies among current 179 judgeships.

Clues to what might happen in the next administration come from what happened in the two most recent ones. In January 1993, after twelve years of Republican presidents, Republican appointees occupied 64% of the 179 circuit judgeships; Democratic appointees occupied 21% and 16% were vacant. In eight years, President Clinton reduced the percentage of Republican appointees from 64% to 42% and increased Democratic appointees from 21% to the same 42%, with 15% of the seats vacant. At present, after eight years of the Bush administration, the percentage of Republican appointees stands at 56% and the percentage of Democratic appointees at 36%, with eight percent of the seats vacant. (The 15 vacancies are those now in place. Including the two Democratic and one Republican appointees who have announced plans to retire within the year creates a vacancy rate of ten percent.)

How was President Clinton able, in eight years, to reduce Republican appointees by 22 percentage points while President Bush, in eight years, could only increase that percentage by 14 points? The answer is not that the Senate confirmed a significantly smaller percentage of Bush nominees. Clinton’s confirmation rate for circuit judges was 73%. Bush’s was 71%.

Two things explain the difference. First, 18 Democratic and 38 Republican appointees elected to retire during Clinton’s eight years in office. (Almost all vacancies occur when judges retire from active service to become senior status judges; a few active judges die in office and a few leave the bench before they are eligible for senior status.) Clinton thus had the opportunity to replace more Republican than Democratic appointees. And he did: 52% of Clinton’s 66 appointees replaced Republican appointees. On the other hand, only 25% of Bush’s 60 appointees replaced Democratic appointees, largely because during his administration, 29 Republican but only nine Democratic appointees took senior status. (His appointees, like Clinton’s, also filled vacancies left over from previous administrations.)

Second, Clinton inherited six of the 11 new circuit judgeships that Congress created in December 1990. Congress has created no circuit judgeships since then.

A picture of how the courts of appeals might appear at the end of the first Obama term, or might have appeared at the end of a first McCain term, requires a few assumptions beyond the assumption that Obama will be able to fill all the current vacancies.

• First, assume that the 111^th Congress will create 12 new circuit judgeships as recommended on March 17, 2009, by the United States Judicial Conference.
• Second, assume the retirement of half the circuit judges who are now eligible or will become eligible to retire by 2011. By my calculations, that would mean 18 Republican appointees and 14 Democratic appointees would take senior status, creating 32 additional vacancies for the next president to fill by 2011, before the process grinds down in the election year.
• Third, assume the president is able to fill all the vacancies created.

The first two assumptions are reasonable but hardly iron-clad. Congress last added circuit judgeships in 1990; there is a pressing need for more. The 110^th Congress considered but didn’t pass a bipartisan bill to create 14 new circuit judgeships. Democrats in the 111^th Congress have stronger majorities in both houses and the incentive to give a Democratic president more judgeships to fill. On the other hand, the current economic situation makes it harder to authorize judgeships and the largely non-stimulative spending necessary to support them.

Judges eligible to retire won’t do so exactly by half, and other vacancies could come, for example, from early resignations because of the dicey federal judicial salary situation.

And some seats will surely be vacant in January 2013, but—as of March 2009—it is impossible even to guess which ones.

Nevertheless, these three assumptions create a basis for a more reasonable estimate of appellate court composition than would be possible without them. With those cautions, a reasonable estimate is that President Obama can reduce the proportion of Republican appointees from 56% to 43% and increase the proportion of Democratic appointees from 36% to 57%. (With the same cautions, a reasonable estimate is that, a President McCain would have increased the total proportion of Republican appointees from 56% to 74% and reduced the proportion of Democratic appointees from 36% to 26%. That level of dominance of one party’s appointees in the courts of appeals has been exceeded once in the federal appellate judiciary’s modern history, in 1953 after 20 years of Roosevelt and Truman appointees.)

As to the composition of the individual courts of appeals, given the assumptions and cautions above, a reasonable estimate is that by January 2013, courts with Democratic majorities will go from one to eight; on four of the eight, Democratic appointees will outnumber Republican appointees by at least two to one. (By contrast, a McCain victory might have meant Republican-appointee majorities in every circuit, and solid majorities in all but one.)

*–Closely divided courts with an uneven number of judges, e.g., a possible 17-judge Sixth Circuit Court of Appeals

Again, no one should assume that these estimates paint the exact picture of the courts of appeals at the end of President Obama’s first term, but the estimates do provide a reasonable framework of anticipation.

¹The calculations in this report are based mainly on data in the Federal Judicial Center’s Federal Judges Biographical Database (fjc.gov) and judicial vacancy information on the federal courts website, viz., uscourts.gov/judicialvac.html.