The Real Battle For The Federal Judiciary

After President Barack Obama wins confirmation of his first Supreme Court nominee, the Court will still lean conservative. And it will still decide only a handful of cases each year. The lower courts, in contrast, will have the final word in more than 99 percent of federal cases. These courts are up for grabs, and Obama's impact on them could be sweeping. Indeed, Obama may be able to completely reshape a conservative-dominated judiciary to one largely controlled by Democratic appointees - even in a single term.

Conservatives hold sway on nearly all of the 12 federal appellate courts. For example, Republican appointees hold a 6-3 majority on the U.S. Court of Appeals for the D.C. Circuit - the important court on which Chief Justice John Roberts Jr., Justice Antonin Scalia, Justice Clarence Thomas and Justice Ruth Bader Ginsburg sat before their elevations to the Supreme Court. Republican appointees also control the 5th Circuit (13-4), 6th Circuit (9-6) (counting Judge Helene White as a Democratic appointee), 7th Circuit (7-3), 8th Circuit (9-2), 10th Circuit (8-4), and 11th Circuit (7-4). In total, Republican appointees have an 88-61 advantage on the appellate courts.

By filling existing vacancies, the president can change that state of affairs very quickly. There are now 18 vacancies on the appellate courts. Filling them could have a serious impact. For example, the 4th Circuit - long regarded as the most conservative federal appeals court in the country - would shift immediately, from a 5-5 split (counting Judge Roger Gregory as a Democratic appointee) to a 10-5 majority of Democratic appointees.

Moreover, many more judgeships are likely to swing soon, as active judges assume so-called "senior status" and the president nominates their replacements. A senior judge continues to hear cases (sometimes with a smaller workload) and retain his or her salary. To assume senior status: (1) a judge must be at least 65 years old and have served at least 10 years on the bench; and (2) the sum of the judge's age and years on the bench must be at least 80.

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