Americans will not only decide who gets at least a four-year lease on the White House, but will also indirectly be choosing who will get lifetime seats on the federal bench. It's Not All About the Supremes

With just days to go before we elect a new President, it's been the forgotten consequence of our ballots: Americans will not only decide who gets at least a four-year lease on the White House, but will also indirectly be choosing who will get lifetime seats on the federal bench.

This year's election has been about anything but our unelected third branch of government -- the judiciary. Instead, it's been about Iraq, Afghanistan, the War on Terror, foreign policy, national security, healthcare, taxes, jobs and, most prominently, the economy. But then, two weeks ago, the Supreme Court got raised in electoral conversation by Gen. Colin Powell as he endorsed presidential candidate Barack Obama.

When NBC's Tom Brokaw asked Powell on "Meet the Press" why he was crossing party lines to endorse the Democratic presidential nominee, Powell answered that he "would have difficulty with two more conservative appointments to the Supreme Court." Suddenly, with that passing comment, the mainstream news media woke up to the fact that this election would not only determine who will be the leader of the free world for the next four years, but also who will judge what our law means for the rest of their lives.

Unfortunately, what little focus there has been on the judicial consequences of this election has, as usual, focused on who will sit on the Supreme Court. No doubt, the highest court in the land is important -- really important -- because the nine justices are the final arbiters of what the "supreme Law of the Land" means. But most cases never get decided by the Supreme Court. After all, the High Court has been consistently deciding fewer than 100 cases each term for years now. What this means is that the federal court of last resort most of the time is a U.S. Court of Appeals.

So while it's a interesting parlor game to guess how many and which justices will retire over the next four years -- speculation is as many as three -- the reality is that most cases will never be heard by the Supreme Court.

What's more, considering the fact that the justices most likely to retire tend to lean Left -- Justices John Paul Stevens, Ruth Bader Ginsburg and David Souter -- most Supreme Court commentators suggest that the balance on the High Court isn't likely to change dramatically if current polls are correct that Democratic nominee Obama will get to choose the next justices.

The same cannot be said for the balance of power on the various federal appellate courts across the country. As the National Law Journal reported last Friday, this year's election could have a "seismic effect" on the make-up of the U.S. Courts of Appeals. Indeed, citing a Brookings Institution study released last week, the story explained that an Obama White House could "give Democrats a 56 percent majority in appointments" of the judges who sit on the federal appeals courts.

Indeed, the National Law Journal article noted that the author of the Brookings Institution report "predicts that in four years of an Obama presidency, his appointments could shift Republican dominance on [the federal] circuits to give Democratic appointees a majority" on most of those appellate courts."

While "only the 9th U.S. Circuit Court of Appeals has a slight majority of Democrat-appointed judges now," under Obama "[t]he balance of appointments could put solid Democratic majorities ... on the 2nd, 3rd and the notoriously conservative 4th Circuit, which currently has four vacancies." Additionally, the study found that Obama appointees "would tip another four courts, the 1st, 7th, 11th and D.C. Circuits."

Not only are these eight appeals courts essentially the final arbiter of federal cases in 30 states and the District of Columbia, as well U.S. territories including Puerto Rico, Guam, the Virgin Islands and the Mariana Islands, but some of these circuits are particularly important to specific areas of law. For instance, the D.C. Circuit decides most of the cases that challenge or arise from regulations created by federal agencies headquartered in Washington, D.C., and, as University of Richmond Law Professor Carl Tobias explained, the New-York-based 2nd Circuit hears many of the most significant business cases.

In other words, the judicial consequences of the upcoming presidential election isn't all about the Supremes -- a fact not lost on Senate Democrats and liberal special interests, which have fought ferociously to delay and kill President George W. Bush's appellate nominees ever since he took office.

It is now hard to remember names like Miguel Estrada and Charles Pickering, who, despite being exceptionally talented and well qualified, were filibustered and thus never confirmed to seats on the federal appellate bench.

Most Americans do not even know that the liberal obstruction has continued to this day, with former Assistant Attorney General and Supreme Court clerk Peter Keisler still waiting after more than two years for an up-or-down vote on his nomination to the D.C. Circuit. Nor does it appear that anyone realizes the next President will get to fill not only these vacancies, but also another 13 appeals court judgeships likely to be created by a bill that has already been introduced.

The long and short of all of this is that when change comes to the White House, it will also come to the federal judiciary. It may not immediately come in the form of a new Supreme Court justice or a significant shift in the balance of the "highest court of the land," but it will come with each judicial appointment made. Those appointments decide real cases that have important consequences, and they will have profound effect on what our law means.

October 29, 2008
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