What Will the Presidential Election Mean for the U. S. Courts of Appeals?

There’s been a lot of speculation about how a President McCain or Obama might affect the composition of the United States Supreme Court. The conventional wisdom has it that any seats that become vacant in the next four years are likely to be from those occupied by the Court’s liberal bloc. With the Court closely divided, McCain appointees would fortify the conservative bloc, while Obama appointees would maintain the status quo. Of course, speculation about vacancies is just that, 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 63,000 cases last year, making them the courts of last resort except for those federal litigants granted review on the Supreme Court’s annual docket of less than 100 cases. How might a President McCain or Obama affect the composition of the courts of appeals? 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 regulations, 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, a court of appeals three-judge panel may consist of judges other than those serving full time in one of the 179-statutorily created judgeships. Panels may include semi-retired “senior status” circuit judges and district judges assigned to sit temporarily on the courts of appeals. 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 appellate judiciary. Two principal factors influence a president’s ability to affect that figure. 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 McCain were able to replace only Republican appointees, he obviously wouldn’t change the percentage of Republican appointees on the courts of appeals. The other factor is whether Congress provides the president any new judgeships to fill, beyond the current level of 179.

Clues to what might happen in the next administration come from what happened in the recent and current administrations. 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. President Bush increased the percentage of Republican appointees to 56% and reduced the percentage of Democratic appointees to 36%, with 8% of the seats vacant. (The 15 vacancies in October 2008 include those now in place and those announced to occur through next January; obviously, if more vacancies occur in the next three months, January 2009 percentages will differ a bit.)

How was President Clinton able, in eight years, to reduce the percentage of 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 is 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 a McCain or Obama first term requires a few assumptions. First, assume that the 111^th Congress will create 14 new circuit judgeships as recommended by the United States Judicial Conference. A bill to do that died in the 110^th Congress, but the 111^1th Congress will likely pass it or something similar. (Court of appeals caseloads have grown by over 50% since 1990.)

Second, assume the retirement of half the circuit judges who are now eligible or will become eligible by 2011. By my calculations, that would mean 18 Republican appointees and 14 Democratic appointees would take senior status, creating 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 assumptions but no more. Congress might adjust the judgeship bill once it knows who will fill the seats. The judges eligible for senior status 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 or circuit judge appointments to the Supreme Court. And some seats will surely be vacant in January 2013. But 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 a President McCain would increase the total proportion of Republican appointees from 56% to 74% and reduce 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. A President Obama, by contrast, would reduce the proportion of Republican appointees from 56% to 42% and increase the proportion of Democratic appointees to 58%.

Under McCain, a reasonable estimate is that all 13 courts of appeals will have Republican appointee majorities, up from ten; 11 of the 13 would be solid majorities—twice as many Republican as Democratic appointees. Under Obama, courts with solid Democratic majorities would go from none to four; those with slight Democratic appointee majorities would go from one to four. Courts with slight Republican appointee majorities would drop from four to two, and those with solid Republican appointee majorities would drop from six to one.

Again, no one should assume that these estimates paint the exact picture of the courts of appeals after a McCain or Obama first term, but the estimates do provide a reasonable framework of anticipation.