Obama's Appointments Are Expected
To Reshape the U.S. Legal Landscape
By Jerry Markon
Washington Post Staff Writer
Monday, December 8, 2008; A01
The federal judiciary is on the verge of a major shift when President-elect Barack Obama's nominees take control of several of the nation's most important appellate courts, legal scholars and political activists say. With the Supreme Court's conservative direction unlikely to change anytime soon, it is the lower courts -- which dispense almost all federal justice -- where Obama can assert his greatest influence.
The change will be most striking on the Richmond-based U.S. Court of Appeals for the 4th Circuit, long a conservative bastion and an influential voice on national security cases, where four vacancies will lead to a clear Democratic majority. Democrats are expected to soon gain a narrower plurality on the New York-based 2nd Circuit, vital for business and terrorism cases, a more even split on the influential D.C. appeals court and control of the 3rd Circuit, which covers Pennsylvania and New Jersey.
Although Republican control will probably persist on a majority of appellate courts for at least several years, some experts say that by the end of Obama's term, he and the Democratic Congress will flip the 56 percent majority Republican nominees now exert over those highly influential bodies.
"Obama has a huge opportunity," said Arthur Hellman, a University of Pittsburgh law professor who is an authority on federal courts. "In a very short time, significant segments of the appellate courts, which are the final authority in all but a tiny handful of cases, will be dominated by Democratic nominees."
The new judges might gradually reshape what many see as a conservative drift in the courts under the Bush administration and issue more moderate-to-liberal rulings in the ideologically charged cases that have fueled the struggle for control of the judiciary. Many judges are independent, and party affiliation is not a perfect predictor of their behavior. Still, studies have shown that Democratic and Republican nominees vote differently on such cultural issues as abortion and gay rights, along with civil rights, environmental law and capital punishment.