Federalist Society Founder Frets They’ll Lose Control Over Federal Courts

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.