May 29, 2005
By Gail Gibson
Baltimore Sun
Even as partisan warfare over the federal judiciary heated up in the 1990s - a prelude of sorts to the brink-of-disaster rhetoric surrounding last week's Senate deal over a handful of nominees to U.S. appeals courts - one of the central players, then-Sen. Jesse Helms, acknowledged the relative obscurity of the fight.
"You go out on the street in Raleigh, North Carolina, and ask 100 people, 'Do you give a damn who is on the 4th Circuit Court of Appeals?' They'll say, 'What's that?'" Helms, a Republican, told one of his home state newspapers in 1999.
Their low profile, however, has not kept the nation's 13 federal appeals courts from landing at the center of the most heated and public debate in Washington so far this year. And despite the deal on nominees brokered by Senate moderates to avert a procedural showdown over filibusters, no one expects the issue to die.
One factor is the looming possibility of a Supreme Court vacancy. But a mix of statistics and politics also have pushed the U.S. Circuit Courts of Appeals into a greater position of decision-making prominence, say activists across the spectrum and legal scholars who closely follow appellate issues.
One step below the Supreme Court, they hear appeals on issues from abortion to gay marriage, property rights and environmental repairs. And as the nation's highest court has reduced its workload - from deciding about 130 cases each term two decades ago to fewer than 80 cases now - the Circuit Courts of Appeals, which decide roughly 27,000 cases each year, increasingly have the last word.
"The Supreme Court is still the ultimate prize," said Elliot M. Mincberg, legal director and vice president of the People for the American Way, an advocacy group that has opposed many of President Bush's judicial picks. "But, given the 80 cases vs. 30,000 cases, the amount of influence that the appeals courts can have is significant."
They also have drawn the spotlight in a number of high-profile cases, and people have taken notice, said Jay Sekulow, chief counsel for the American Center for Law and Justice, a conservative advocacy group that has supported the president's judicial nominees.
"Every major social issue is being decided now in the courts, not in the legislatures," Sekulow said.
The Atlanta-based 11th U.S. Circuit Court of Appeals was criticized earlier this spring when it decided not to intervene in the case of Terri Schiavo, the severely brain damaged Florida woman. The San Francisco-based 9th Circuit Court prompted a national uproar with its 2002 ruling that the words "under God" turned the time-honored Pledge of Allegiance into a "profession of religious belief."
The Supreme Court weighed in on both cases - siding with the 11th Circuit; overturning the 9th Circuit - but the initial impression proved lasting.
"Most folks may not know the difference between a federal court and a tennis court, but they do know that their child cannot say the Pledge of Allegiance in their classroom, and that upsets them," Wendy E. Long, general counsel for the Judicial Confirmation Network, a conservative group that has worked to support Bush's nominees, told reporters as the Senate fight escalated.
"The inside-the-Beltway language that is typically used when it comes to judicial nominations is not necessarily as relevant," Long said. "But when you're looking at a case, like Terri Schiavo or the Pledge of Allegiance or Ten Commandants - or even property rights cases or any of these other cases, the terrorist cases that have come up - that makes it relevant and very real to the average person out there."
While conservative activists complain about liberal "activist" judges, a headcount of the federal judiciary shows that the majority of current appeals court judges were appointed by Republican presidents.
As of last week, 94 of the 162 active judges on the federal appeals courts - or 58 percent - were appointed by Republican presidents. That number bumped up by one Wednesday, with the Senate's confirmation of Texas judge Priscilla Owen to the New Orleans-based 5th U.S. Circuit Court of Appeals.
When Bush took office, there was a Republican-appointed majority on eight of the 13 federal appeals courts. At the end of his first term, there was a GOP-appointed majority on 10 of them.
Last week's Senate deal also means the only evenly divided appellate court, the Cincinnati-based 6th Circuit Court of Appeals - which has six Democratic and Republican appointees each - is likely to tip to a Republican-appointed majority, with two nominees for that court cleared Thursday by the Senate Judiciary Committee.
Whether a judge was nominated by a Republican or Democratic president is not a reliable indicator of whether they will be considered to be conservative or liberal in their rulings. Supreme Court Justice John Paul Stevens is considered one of the most liberal members of the nine-member Supreme Court, and he was appointed by Republican President Gerald Ford. Justice David H. Souter, appointed by President George H.W. Bush, also regularly votes with the court's liberal members.
But in a study last fall, two political science professors concluded that the federal judges appointed during President George W. Bush's first term have been among the most conservative on record, and they have drawn more attention than previous nominees for their records on hot-button social issues.
"Few observers, friend or foe, have commented on Bush's nominees in terms of their possible effect on judicial issues pertaining to labor-management disputes, the power of the bureaucracy, or major curtailments in the rights of routine criminal defendants," Kenneth L. Manning of the University of Massachusetts-Dartmouth and Robert A. Carp of the University of Houston wrote in a study.
Their study, presented at the American Political Science Association in September, predicted that if Bush won a second term, "the record over the past four years suggests that the final imprint Bush may leave on the judiciary after eight years would consist of a sharp turn to the right."
For many conservative activists, it cannot be sharp enough.
Religious activist James Dobson said last week that his organization, Focus on the Family, shared "the disappointment, outrage and sense of abandonment felt by millions of conservative Americans who helped put Republicans in power last November," in denouncing the bipartisan plan that ensured that some of President Bush's judge picks would be confirmed by the Senate, but not all.
"I am certain that these voters will remember both Democrats and Republicans who betrayed their trust," Dobson said.
Activist groups on both sides have poured money, advertising and lobbying efforts into the judge fight as never before, said Carl W. Tobias, a law professor at the University of Richmond who has tracked the Senate feud over judicial nominations.
"They dropped $50,000 in Nevada to disparage [Senate Minority Leader] Harry Reid," said Tobias, who was among the founding law school faculty at the University of Nevada, Las Vegas in the 1990s. "That was money down a rat hole - they weren't going to change people's view out there of Reid on this one issue - but that shows the kind of money they had to throw around."
The Senate filibuster fight may have offered the country a sort of civics lesson in the importance of the federal appeals courts, Tobias said. But, he warned, there also could be a downside.
"For the courts, they need to be perceived as neutral, independent arbiters who decide things based on the merits," Tobias said. "And the more this goes on, the more political they appear."
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