Party flip in the federal courts

Since the inauguration of Barack Obama in January 2009, eight U.S. courts of appeals have flipped parties, The New York Times reported.

Now nine of the 13 federal appeals courts — almost 70 percent — have more active judges who received their appointments from Democratic Presidents than colleagues who got theirs from Republican Presidents.

For those of you who know your way around an abacus, that means that before January 2009 only one circuit remained more than half Democratic appointees.

The Mid-America circuits hold on

The ever-blue Ninth Circuit didn't change, but the First, Second, Third, Fourth, Tenth, Eleventh, D.C., and Federal Circuits did.

That leaves the mid-America circuits — the Fifth (Louisiana, Mississippi, and Texas), Sixth (Kentucky, Michigan, Ohio, and Tennessee), Seventh (Illinios, Indiana, and Wisconsin), and Eighth (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota). They may not tip to the Democratic side any time soon.

The Fifth Circuit, with 15 active judges and two vacancies, features a 5-10 Democratic appointee to Republican appointee ratio.

The Sixth, which also have 15 actives but only one empty seat, likewise goes 5-10.

In the Seventh Circuit, the count runs 3-7, with a single vacancy.

A 3-8 lineup obtains in the vacancy-less Eighth Circuit.

Does it matter?

"Of course, a president’s political affiliation ultimately has no bearing on how a judge decides cases", said The New York Times.

Blawgletter wrote back in 2007:

[L]et's not go too far in connecting who-appointed-me with political overtones.  Most people, we imagine, take the identity of the appointing president as a proxy for judicial philosophy — liberal, conservative, activist, law-and-order, and the like.  Fine.

The difficulty comes in cases that inject judges into the political process.  One might in good faith wonder, for instance, whether any of the justices who decided Bush v. Gore pondered the impact that his or her vote might have on the Court's balance and therefore his or her influence in future decisions.

Nor can we ignore the linkage that politicians make in their campaigns between electing them and the judicial appointments they would make.   

Practicing lawyers, including Blawgletter, want to know judges' pre-appointment political affiliation.  We just do.  And we find their bristling at reports of that affiliation reassuring. 

Those who disagree might consider doing what our 12-year-old son suggests:  Cry me a river, build a bridge, and get over it.

We'll add that The Wall Street Journal seems to think that party affiliation of the appointing President matters.