The National Law Journal has this must read article (via Steve Hall) on the power of the new adminstration to shape the lower federal judiciary. Long story short, four of the six most active courts handling capital cases will move from majority Republican appointee to majority Democratic appointee.
By the end of a four-year term, the Obama administration could expect to turn as many as eight of the nation’s 13 federal circuits from either slightly to solidly Democrat-appointed majorities. Currently, only the 9th U.S. Circuit Court of Appeals, which will have 29 judgeships, has a majority of Democrat- appointed judges.
The transition could shift the 1st, 2d, 3d, 4th, 7th 11th and D.C. circuits, with the 9th adding to its existing Democrat appointees. The Federal Circuit, which handles patent appeals, is likely to end up balanced equally with appointees from both major parties.
The most striking change could come soon after Obama takes office, with the selection of nominees to fill four existing vacancies on the staunchly conservative, 15-judge 4th Circuit.
When Obama takes over on Jan. 20, 2009, there will be 15 vacancies on the appellate bench nationally.
Yet that does not tell the whole story. A federal judgeship bill, proposed in April, would have added 12 new appellate seats and 43 trial court judgeships across the country, but the measure died amid partisan squabbling.
The added strength of Democrats, picking up at least six Senate seats in the next Congress, is likely to mean the measure will be resurrected and approved.
“Of all the federal appellate courts, 56% of the judges are Republican appointees,” said Ilya Shapiro, a senior fellow and editor of the Supreme Court Review for the Cato Institute, known for its libertarian, small-government philosophy. Nine of 13 circuits have slight or major dominance by Republican-appointed judges, he said.
“Over the next four years, he could sway all but one, the 5th Circuit,” Shapiro said.