President-elect Barack Obama will be appointing federal appellate judges, and possibly multiple Supreme Court justices, without the difficulties that President George W. Bush had over the past eight years. A Senate controlled by Democrats will ease the process, resulting in a shift to the left in the federal court system.
Three of every five judges in the federal courts are Republican appointees, so Obama’s appointments will bring “a restoration of balance” to the more conservative courts, said Harvard Law School professor and Obama legal advisor Cass Sunstein. Obama stated during his campaign that he would appoint judges who would look beyond the literal wording of the Constitution and who would base their philosophies on life experiences.
Obama will likely have the opportunity to appoint at least two, if not more, Supreme Court justices. Ruth Bader Ginsburg, 75, and John Paul Stevens, 88, are the Court’s oldest justices and the two most likely to retire and produce vacancies in the Court; they are also seen as two of the most liberal justices. Additionally, Justice David Souter, a Republican appointee but typically more liberal on social issues, may possibly retire during Obama’s term to return to his home state of New Hampshire.
Supreme Court appointments are lifetime appointments; if Obama appoints younger justices who could serve for decades it would solidify the liberal wing and make a conservative shift during that time less likely.
There are also 15 federal appeals court vacancies. Bush appointed 61 appeals court judges, and when Obama takes office, there will be 100 Republican appointees and 64 Democratic appointees. Russell Wheeler, a Brookings Institution fellow, estimates that with the current vacancies and the likelihood of an expanded judiciary, Democratic appointees will fill 112 seats in the next four years, which will amount to 58 percent of the seats.
The 4th U.S. Circuit Court of Appeals, widely regarded as the most ideologically conservative federal appellate court, has four vacancies which will allow Obama to put Democratic appointees in the majority. The 2nd Circuit and the 9th Circuit are also expected to gain Democratic majorities.
Obama’s appointments will likely lead to a judiciary more hospitable to abortion rights, affirmative action, and claims of job discrimination, and possibly one more skeptical of the death penalty and advocating gun and property rights. Though conservatives are concerned about the appointments, Sunstein believes Obama may consult with Republicans in order to reduce partisan issues over nominations.