Battle over judges foreshadows Supreme Court clashes to come

WASHINGTON — The looming battle over President Bush's nominees to the U.S. appeals courts might derail the Senate, but it may not make much difference in the federal courts. That's because Republican appointees already dominate them.

Ninety-four of the 162 active judges now on U.S. appeals courts were chosen by Republican presidents. On 10 of the 13 circuit courts, Republican appointees have a clear majority. And, since 1976, at least seven of the nine seats on the U.S. Supreme Court have been filled by Republican appointees.

Even if President Bush wins approval for the dozen disputed nominees who have been blocked by Senate Democrats, only one circuit would shift its ideological balance: The 6th U.S. Circuit Court of Appeals in Cincinnati, now evenly divided, would become 10-6 Republican. That would give Republicans a majority on 11 of the 13 circuits versus the current 10 of 13.

Although it remains a staple of conservative rhetoric that the courts are "out of control" and driven by "liberal activists," the GOP's control of the White House for 24 of the past 36 years has given Republicans — if not conservatives — a firm grip on the federal judiciary.

But the fact is that party labels don't necessarily mean much on the bench.

For Republicans, that has proved especially true as the party moved further to the right, in some cases leaving "conservative" judges looking "moderate." That's why last year's Republican Party platform took aim at the federal courts and pledged to "stop activist judges from banning the Pledge of Allegiance and the Ten Commandments."

Filibuster a de facto veto

The fight over filibusters may have more to do with the kind of Republican who joins the courts, in particular the Supreme Court. While Democrats are determined to block judicial nominees they see as conservative ideologues, the Republican leadership will push for right-leaning judges.

Under the Constitution, the president's judicial nominees need only a majority vote in the Senate to be confirmed. However, under the Senate's rules, it takes 60 votes in the 100-member Senate to cut off debate.

That means the 44 Democrats can block President Bush's nominees by refusing to cut off debate. To prevent that, Republicans now threaten to kill the filibuster and revert to majority rule.

The imminent fight over appeals-court nominees is widely considered a rehearsal for this summer, when the ailing Chief Justice William Rehnquist, 80, is expected to retire.

"The only way to explain the fever pitch over this issue [of filibusters] is its potential impact on a Supreme Court fight," said Washington attorney Brad Berenson, a White House lawyer during Bush's first term.

The dominance of GOP appointees on the Supreme Court has not led to predictably conservative rulings. Indeed, the court has upheld the right to abortion and preserved the ban on school-sponsored prayers, two of its still-disputed liberal precedents.

More recently, it has expanded gay rights, upheld affirmative action in colleges and universities and struck down the death penalty for murderers who are mentally retarded or under age 18.

Case study: Bork

The importance of what brand of Republican joins the court was driven home in 1987, when President Reagan nominated conservative judge Robert Bork for the Supreme Court. Senate Democrats defeated Bork, and Reagan chose instead Judge Anthony Kennedy, a Republican with a reputation as a moderate conservative. He won a unanimous confirmation by the Senate.

The switch proved momentous. In 1989, Kennedy cast the fifth vote to rule that burning an American flag was protected as an act of free speech. In 1992, Kennedy and Justice Sandra Day O'Connor, Reagan's first appointee, cast the deciding votes to uphold the right to abortion and to prohibit public schools from sponsoring prayers, even during ceremonies such as graduation.

O'Connor cast the deciding vote to uphold college affirmative action two years ago, and Kennedy cast the key vote last month to strike down the death penalty for juvenile murderers.

Bork, now retired, has said he would have voted the other way on all of those issues and given the conservative dissenters the majority.

A similar drama could play out in Bush's second term. Justice John Paul Stevens, who will celebrate his 85th birthday Wednesday, has been the court's liberal leader for the past decade. Although he has been in good health, he could be forced to step aside in the next few years. Similarly, O'Connor, 75, has been the subject of retirement rumors, although she says she has no plans to quit.

If the Senate's filibuster rule survives, Democrats could wield a veto of sorts. However, if the Republicans win a change in the filibuster rule, Bush could look forward to easy confirmation for his Supreme Court nominees.

Limited impact

In the meantime, the fight is over nominees to the midlevel appeals courts, whose authority is limited.

They hear appeals from the federal trial courts in their region, and these appellate judges are supposed to follow the law as written by Congress and interpreted by the Supreme Court. When the circuit courts disagree on a significant issue of law, the Supreme Court usually takes up a case to resolve the dispute.

Many of the disputed Bush nominees to those courts are not likely to have much impact even if confirmed.

For example, Priscilla Owen, 50, and a justice on the Texas Supreme Court, was nominated to serve on the 5th Circuit based in New Orleans. She had a conservative, pro-business record on the Texas court, and Democrats on the Senate Judiciary Committee said they did not believe she would be fair to workers, environmentalists and others who sued a business.

In 2003, by using the filibuster, the Democrats repeatedly blocked her from having a confirmation vote on the Senate floor. However, if the filibuster were broken or the rules were changed, Owen would simply add one more conservative voice on a thoroughly conservative appeals court. Currently, 11 of its 15 judges are Republican appointees; Owen would be the 12th.

Despite some of their rhetoric, congressional Republicans have acknowledged by their actions that the federal courts are not wildly liberal.

Earlier this year, the GOP pushed through a bill to limit class-action lawsuits by transferring them from the states to federal judges. Its sponsors believed the federal judiciary would prove more friendly to business and less accommodating to trial lawyers and consumer activists.