Senate Standstill to Let Obama or McCain Tip Balance on Courts

[Ron Burgundy]

Bloomberg - Aug. 7 (Bloomberg) -- An election-year standstill in Senate confirmation of George W. Bush's judicial nominees will give the next president a chance to tip the ideological balance of U.S. appeals courts that decide such issues as job discrimination, national security and pollution-cleanup disputes.

The Democratic-controlled Senate has stopped filling vacancies on appeals courts, which in many respects have greater impact than the Supreme Court. The high court decides about 70 cases each year, while the 13 appellate courts issue thousands of rulings.

A carryover of the 10 vacancies would have the greatest effect if Democrat Barack Obama defeats Republican John McCain in November. It would let Obama move quickly to put his stamp on the courts after eight years of nominations by Bush. Six of the 13 U.S. appeals courts are closely divided between Republican and Democratic appointees.

In a McCain presidency, ``it is not inconceivable that every circuit could have a majority of Republican-appointed judges,'' said Mark Levy, a Washington lawyer and deputy solicitor general under President Bill Clinton. Obama might be able to appoint enough judges so almost half the appeals courts would be dominated by Democratic nominees, he said.

The Senate's judicial-confirmation slowdown is typical for the last year of a president's term, particularly when the opposition party controls the Senate. California Democrat Dianne Feinstein called it ``standard operating procedure'' for both parties.

10 Confirmed

Still, Republicans say Senate Democrats are being stingier than they were at the end of Clinton's presidency. The Senate has confirmed 10 of Bush's appeals-court nominees since early 2007, compared with 15 confirmed during Clinton's last two years in office under Republican Senate control.

``It's not par for the course,'' said Utah Republican Orrin Hatch. Democrats are stalling because they are ``convinced that Obama is going to win'' the presidency and ``fill these judgeships,'' the senator said.

Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, declared the near-moratorium on filling judicial vacancies last week as Congress began a five-week recess. Leahy said he wants enactment of ``a whole lot'' of legislation before considering any more judicial nominees, including Bush's eight candidates for appeals courts.

Among those likely to be left behind is Peter Keisler, Bush's selection for a vacancy on the District of Columbia Circuit Court of Appeals. Keisler's nomination has been pending in the Senate since his nomination in June 2006.

`Fast Track'

Hatch accused Democrats of blocking Keisler because ``he would be on a fast track to the Supreme Court. They don't like that.''

Two nominees for the 4th Circuit, Robert Conrad and Steve Matthews, have drawn opposition from liberal advocacy groups such as People For the American Way, based in Washington.

In addition to the vacancies, Congress is considering legislation to expand the appellate courts and let the next president appoint another 12 judges.

A decision last month by the 4th U.S. Circuit Court of Appeals illustrates the election's potential impact. The court in Richmond, Virginia, which has four vacancies among 15 seats, has been instrumental in limiting the rights of suspected terrorists held in military detention.

By a 5-4 vote, the court ruled July 15 that Bush had authority to hold Ali Saleh Kahlah al-Marri without trial as a military prisoner although the suspected al-Qaeda operative entered the country legally in 2001.

Chance to Challenge

On a separate question in the case, one judge in the majority joined the four dissenters to rule that al-Marri still must be allowed to challenge his detention in federal court.

``Within a year of getting into office,'' Obama ``will be able to flip that circuit'' from control by Republican appointees to a Democratic-appointed majority, said Curt Levey, director of the Committee for Justice, a Washington advocacy group that supports conservative judicial nominees.

The next president will also get the chance to reshape the 2nd Circuit in New York and the 3rd Circuit in Philadelphia. Both courts are evenly divided among Republican and Democratic appointees. Vacancies and retirements could also lead to realignment of the 1st Circuit in Boston.

McCain has told Republican conservatives he would continue to appoint judges in the same mold as those nominated by Bush, though no one can predict how a president's appointees would decide particular cases.

`Equitable Balance'

Judges picked by Obama likely would strike ``a more equitable balance between liberty and national security,'' said Michael Gerhardt, who teaches law at the University of North Carolina in Chapel Hill.

The last appellate judge confirmations were in June, as Leahy warned colleagues the time was fast approaching when the Senate would approve only nominees supported by him and leaders in both parties.

Levey said two nominees may pass that test and win confirmation after the election. Nominees Glen Conrad for the 4th Circuit and Paul Diamond for the 3rd Circuit faced no opposition when they were confirmed for trial-court judgeships. Leahy was noncommittal on whether they will be confirmed.

Democrats are playing ``a short-sighted game, because around here what goes around comes around,'' said Texas Republican Senator John Cornyn. ``When the shoe is on the other foot, there is going to be a temptation to respond in kind.''

To contact the reporter on this story: James Rowley at jarowley@bloomberg.net

source: http://news.yahoo.com/s/bloomberg/20080807/pl_bloomberg/apaxovqryi7k [link]