Judges Battle Transcends Numbers
WASHINGTON — The looming battle over President Bush's nominees to the U.S. appeals courts might derail the Senate, but it probably won't make much difference in the federal courts. That's because Republican appointees already dominate them.
Ninety-four of the 162 active judges now on the U.S. Court of Appeals 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 Bush wins approval for the dozen disputed nominees who have been blocked by Senate Democrats, only one circuit would change its ideological balance -- hardly a seismic shift. The 6th U.S. Circuit Court of Appeals in Cincinnati, now evenly divided, would become 10-6 Republican.
Though 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 last 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 become especially clear as the party has 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 GOP-dominated federal courts and pledged to "stop activist judges from banning the Pledge of Allegiance and the Ten Commandments."
The fight 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 pushes 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, breaking a filibuster.
That means the 44 Democrats can block Bush's nominees by refusing to cut off debate. To prevent that, Republicans now threaten to remove the ability to filibuster judicial nominations.
The imminent fight over appeals court nominees is widely considered a rehearsal for this summer, when the ailing Chief Justice William H. Rehnquist, 80, is expected to retire. He could be the first of several high court justices to depart during Bush's second term.
