January 23, 2009

A Look at the Fourth Circuit

The Wall Street Journal weighs in on the judicial landscape as President Obama begins his first term.  The article hits on many of the same notes discussed in an earlier post here.  

WSJ sets their focus on the Fourth Circuit, where there are currently four vacancies.  The court currently consists of six Republican-appointed judges and five appointed by Democrats.  The math supports Russell Wheeler's observation that, "Under Mr. Obama, the Fourth Circuit really could become a Democratic court."  What makes this particularly troubling is that the Fourth Circuit has been a reliably conservative court in recent memory.  (Judge Harvie Wilkinson III of the Fourth Circuit weighs in today in a WaPo Op-Ed)

 Although the Supreme Court is not likely to shift during Obama's tenure, the numbers appear to be lining up in a way that offers Mr. Obama the opportunity to radically shape the appellate judiciary through the appeals courts, especially the Fourth Circuit.  While the Supreme Court gets most of the attention, the appellate courts have a substantial effect on shaping the law in America.  For example, "From March 2007 through March 2008, for instance, federal appellate courts effectively ended more than 60,000 cases."  

Mr. Obama has left much to speculation regarding the direction he will take with judicial nominees.  His rhetoric on the campaign trail describing his ideal judges was boiler-plate liberal, hands on the scales of justice blather, but his other nominations have been more moderate.  

The worry is that he will use his judicial nominees to placate the left wing of his party who was instrumental in his election.  They have felt slighted over many of his appointments, and the judiciary is a good way to throw them a bone under the radar.  As Arthur Helman notes, "He can do something important for the left wing without it costing him a lot; most people just don't follow judicial nominations that closely."

While the Democratic majorities in both houses make it likely that Obama's nominees will get confrimed, Republicans need to make sure that they do their due diligence  in reviewing nominees and hold the Obama administration to the post-partisan, non-ideological standard they have proclaimed.