Steven Calabresi

It was not too long ago that I wrote a post about how complicated it is to try and make accurate statements about judicial confirmation rates and how Republicans and right-wing judicial activists exploit that fact to make it seem as if President Bush has somehow gotten a raw deal when it comes to seeing his judges confirmed. 

Today comes an op-ed by Federalist Society founder Steven Calabresi in the Wall Street Journal making the same point and issuing a dire warning that if Barack Obama is elected, we're going to see a complete take over of the federal judiciary by liberal activist judges:

One of the great unappreciated stories of the past eight years is how thoroughly Senate Democrats thwarted efforts by President Bush to appoint judges to the lower federal courts.

Consider the most important lower federal court in the country: the United States Court of Appeals for the District of Columbia Circuit. In his two terms as president, Ronald Reagan appointed eight judges, an average of one a year, to this court. They included Robert Bork, Antonin Scalia, Kenneth Starr, Larry Silberman, Stephen Williams, James Buckley, Douglas Ginsburg and David Sentelle. In his two terms, George W. Bush was able to name only four: John Roberts, Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh.

Although two seats on this court are vacant, Bush nominee Peter Keisler has been denied even a committee vote for two years. If Barack Obama wins the presidency, he will almost certainly fill those two vacant seats, the seats of two older Clinton appointees who will retire, and most likely the seats of four older Reagan and George H.W. Bush appointees who may retire as well.

The net result is that the legal left will once again have a majority on the nation's most important regulatory court of appeals.

The balance will shift as well on almost all of the 12 other federal appeals courts. Nine of the 13 will probably swing to the left if Mr. Obama is elected (not counting the Ninth Circuit, which the left solidly controls today). Circuit majorities are likely at stake in this presidential election for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal. That includes the federal appeals courts for New York City, Los Angeles, Chicago, Boston, Philadelphia and virtually every other major center of finance in the country.

The interesting thing about Calabresi's handwringing that "majorities are ... at stake ... for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts" is his willingness to overlook the basic fact that the Republican majorities on a lot of circuit courts are at stake mainly because Republicans have majorities on nearly every circuit court in the country.

Take a look at this breakdown from the Alliance for Justice of current circuit court justices by appointing president and you'll see that, with the exception of the 9th Circiut and ties on the 2nd and 3rd Circuits,  Republican judges outnumber Democratic judges across the board:

DC Circuit: 7 Republican - 4 Democratic

1st Circuit: 3 Republican - 2 Democratic

2nd Circuit: 6 Republican - 6 Democratic

3rd Circuit: 6 Republican - 6 Democratic

4th Circuit: 7 Republican - 4 Democratic

5th Circuit: 13 Republican - 4 Democratic

6th Circuit: 10 Republican - 6 Democratic

7th Circuit: 8 Republican - 3 Democratic

8th Circuit: 9 Republican - 2 Democratic

9th Circuit: 11 Republican - 16 Democratic

10th Circuit: 8 Republican - 4 Democratic

11th Circuit: 7 Republican - 5 Democratic

Federal Circuit: 8 Republican - 4 Democratic

Overall, Republican circuit court judges outnumber Democratic judges 103-66.  And the reason for that is because for 20 of the last 28 years, Republicans have occupied the White House and have filled the federal bench with judges who share their ideology.  As the AFJ points out:

Judges appointed by Republican presidents dominate the Supreme Court, the courts of appeals, and the district courts. Over 58% of all federal judges were appointed by Republican presidents. George W. Bush has appointed nearly 37% of all sitting federal judges.

After two decades of Republican presidents stacking the federal bench with judges who share Calabresi's right-wing Federalist Society ideology, creating an situation in which that ideology dominates nearly every court in the land, Calabresi is suddenly worried about balance and fairness and breathlessly warning that the "federal courts hang in the balance" because "nothing less than the very idea of liberty and the rule of law are at stake in this election?" 

Give me a break.

Almost from the moment he entered the Republican Primary, Rudy Giuliani’s campaign has come under fire from the Right.  

In large part because of his marital history and his views on reproductive choice, several high profile right-wing leaders – including James Dobson, Richard Land, Richard Viguerie, and Tony Perkins - have already publicly declared that they will not, under any circumstances, vote for Giuliani or support his campaign.  In addition to this pressure, Giuliani is also coming under attack from grassroots organizations such as Catholics Against Rudy, which seeks to expose his “abysmal record on non-negotiable ‘Culture of Life’ issues.”

Faced with this mounting opposition to his candidacy, Giuliani has recently launched a concerted effort to neutralize these efforts and perhaps even entice a fair number of so-called “values voters” by appealing to their desire to see the Supreme Court utterly controlled by ultra-conservative justices.

Dominance of the Supreme Court has long been a right-wing goal and it is no secret that the confirmation of John Roberts and Samuel Alito to the court has been one of the most significant and, for the Right, most gratifying and highly-praised  accomplishments of the Bush administration.   

Going into the 2008 election, the future of the Supreme Court is going to be a central issue and those on the Right know, in the words of Tony Perkins, “that next vacancy is just so incredibly important” – which is exactly why Giuliani is currently in the midst of pledging to just about anyone who will listen that, if he wins the GOP nomination and is elected, he will deliver for the Right:

As President, I will nominate strict constructionist judges with respect for the rule of law and a proven fidelity to the Constitution – judges in the mold of Justices Scalia, Thomas and Alito and Chief Justice Roberts.

Giuliani’s commitment to nominating Scalia and Thomas-like judges has recently become a centerpiece of his campaign and is even listed as one of his “12 Commitments” that frame his campaign.  To demonstrate just how much Giuliani is banking on this pledge, his campaign recently unveiled a “Justice Advisory Committee” designed to signal to the Right just how committed he is to filling the bench with hard-right ideologues.  

Consisting of the likes of former Solicitor General Ted Olson, failed DC Circuit nominee Miguel Estrada, and Federalist Society co-founder Steven Calabresi, among others, Giuliani’s “Justice Advisory Committee” exists primarily in order to assure conservatives who may have qualms about him that he can and will deliver to them their ultimate prize: the Supreme Court.   

As Miguel Estrada stated during the unveiling of the committee:

[W]e need to make every effort we can to have the quality judicial appointments that we have had in Justice Alito and Chief Justice Roberts. And Rudy has stated in no uncertain terms that those are the models for what he looks for in his judges. He will be what our court system needs, is what our litigation society needs, and I am confident that with all of our help and your help he will be able to bring that home.”

For his part, Calabresi did his part to drive home the message:

 “The next President of the United States could easily end up making four appointments to the Supreme Court and I think the future of our 25 year struggle to rein in judicial activism is at stake. I’m convinced that Rudy Giuliani is the man who can win that fight. It’s an honor to be here and to be a member of his campaign advisory committee.”

Giuliani may not be the Right’s favorite candidate, but with no clear front-runner emerging, he appears to be seeking to position himself as the candidate most committed to fundamentally and lastingly shifting the balance on the Supreme Court in favor of the Right – a temptation he hopes just might be enough to weaken the resolve of even his most hardened right-wing foes.