Blawgletter adores balance.
Take the Supreme Court of the Lone Star State, a court at which we look often. Back in 2008, we reviewed the data from a new nation-wide study of state courts and told you that the Texas Supreme Court's balance during its transition from all-Democratic to all-Republican explained its far-greater influence with other courts then than before or since. "Balance on Texas Supreme Court = Greatest Influence".
Today we wonder whether the same thing in the federal appellate courts might make them better. While we don't know of any empirical data that could show improvement, stagnation, or decline as a result of growing balance in the upper two-thirds of the federal judiciary over the last four years, our own experience suggests that more balance yields higher-quality decisions.
Let's focus today just on the question of whether today we have good balance or not.
Since taking the oath of office (twice) in January 2009, President Obama has placed two justices on the U.S. Supreme Court (Sonia Sotomayor and Elena Kagan) and thirty circuit judges on the U.S. courts of appeals.
Balance on the Supreme Court shifted from two justices that Democratic presidents named versus seven Republican ones to 4-5 today. But the liberal-conservative count remains 4-5.
Which suggests that the party affiliation of the nominating president tells you only so much. But let us continue.
Six of the 13 circuits now have majorities of active judges that Democratic presidents nominated:
Four of them would become more Democratic if President Obama fills the current vacancies:
Two other circuits would flip if Obama fills all of pending vacancies. The D.C. Circuit would go from 3-5 to 6-5, and the Federal Circuit to 7-5 from 4-5.
Tenth Circuit would balance at 6-6 from 3-6.
The others would stay majority Republican, but with one exception less so, unless more active judges leave:
Fifth: from 5-10 to 7-10
Sixth: from 6-10 to 6-10
Seventh: from 3-7 to 4-7
Eighth: from 3-8 to 4-8
So, to review:
- we now have near-equipoise — six circuits majority Democratic, seven mostly Republican.
- two circuits would flip from Republican to Democratic if President Obama fills all the current vacancies on those courts.
- one would go from majority Republican to a push.
- four would stay majority-Republican unless more active judges retire, pass on, or take senior status.
- by 2016, Democratic nominees will likely have the edge in eight circuits, a tie in one, and minority status in four.