What Lawyers Do

A New York Times article analyzes how over the past 8 years under Bush the federal appeals courts have moved rightward so that Republican-appointed judges have a majority on 10 of the 13 circuits. The presidential election will determine if these courts shift even further rightward or move to the center.

An Obama victory could roll back the Republican advantage on the appeals courts and even create a Democratic majority by 2013, according to a study of potential vacancies by Russell Wheeler of the Brookings Institution. But if Mr. McCain wins, Republicans could achieve commanding majorities on all 13 circuits.

Much of the discourse in the mainstream media addressing the 2008 presidential election and its effect on the courts has focused on the Supreme Court. This article is a refreshing change since appeals courts (and of course district courts) hear many more cases and have a significant impact on the rights of women, minorities and workers. 

Do the political leanings of judges impact their decisions? Anecdotally, most lawyers would say yes–certainly in these polarizing days. A study overseen by Cass Sunstein, a Harvard Law School professor, provides statistical support: 

It found that as a group the appellate judges appointed by Presidents Dwight D. Eisenhower, Richard M. Nixon and Gerald Ford voted for a conservative outcome in 52 percent of their cases. Mr. Clinton’s judges had an identical record.

By contrast, the appeals court judges appointed by Reagan and the two Presidents Bush took the conservative position in 62 percent of cases. And that number was larger in certain ideologically charged areas, like abortion, affirmative action, environmental protection and whether states have sovereign immunity from federal lawsuits.