Courts

By the time his second term ends in January, President Bush will have appointed scores of right-leaning judges to lifetime jobs on the federal bench —- to the delight of his conservative base.

A president’s nominations to the federal judiciary leave an imprint on the courts that lasts for decades. At the Republican National Convention, some delegates appreciatively wore “Thanks W!” campaign buttons with photos of John Roberts and Samuel Alito, the two justices Bush put on the nation’s highest court.

Now that Barack Obama will be the country’s next president, liberal groups hope his nominees tilt the judiciary back to the left.

They expect Obama, with a Democratic majority in the Senate, will choose judges who often side with liberals on the most hotly contested social issues: abortion, school prayer, gay rights, gun control, affirmative action.

Legal experts who closely follow the Supreme Court are predicting Obama’s first choice, if he’s given the opportunity, will be a woman. Among those listed as potential nominees is Georgia Supreme Court Chief Justice Leah Ward Sears, who is retiring from the court next June.

Other women who appear on short lists of potential nominees are Judge Sonia Sotomayor of the federal appeals court in New York, Harvard Law School Dean Elena Kagan, Judge Diane Wood of the federal appeals court in Georgia and Michigan Gov. Jennifer Granholm. Other possible nominees are Yale Law School Dean Harold Koh and Massachusetts Gov. Deval Patrick, legal experts say.

“Certainly there is tremendous excitement,” said Nan Aron, president of the Washington-based Alliance for Justice, which opposed many of Bush’s nominees.

“The Bush Administration left an indelible mark on the federal courts at every level,” Aron said. “Now there will be enormous opportunities for President-elect Obama to create and leave his own important legacy. We’re elated he’ll reassert some balance on the courts.”

Bush often tapped “strict constructionists” —- judges who believe the Constitution should be read literally.

“President Bush achieved what no Republican president has achieved in ages —- two excellent Supreme Court appointments,” said Ed Whelan, president of the Ethics and Public Policy Center in Washington.

With Roberts and Alito joining Justices Antonin Scalia and Clarence Thomas, the high court is one short of a majority of justices known for practicing judicial restraint.

“Appointees of Barack Obama will drive the court in the wrong direction, towards pervasive liberal judicial activism,” said Whelan, a former law clerk of Scalia’s. “It’s clear, considering what Barack Obama has said about Supreme Court appointments, that he is looking for judges who’ll indulge their left-wing policy preferences.”

Legal experts who closely follow the high court point to Justices John Paul Stevens, 88, and Ruth Bader Ginsburg, 75, as the most likely to step down during Obama’s presidency, although neither justice has given any hints about retiring. If Obama were to replace either justice, both of whom are members of the court’s liberal wing, he would not greatly alter the court’s ideological composition.

Bush’s appointment of the reliably conservative Alito to replace former Justice Sandra Day O’Connor moved the court decidedly to the right, because O’Connor most often cast the swing vote on closely decided cases.

U.S. Supreme Court nominees get the most attention, but judges put on the federal district and appeals courts decide far more cases. As soon as he takes office, Obama will have two such vacancies to fill in Atlanta.

In January. Judge R. Lanier Anderson of Macon, a member of the 11th U.S. Circuit Court of Appeals, will take “senior status,” meaning he’ll reduce his caseload. By tradition, a Georgia lawyer will succeed Anderson.

U.S. District Court Judge Clarence Cooper of Atlanta announced he will take senior status in February.

Nationwide, 15 federal appeals court and 37 district court vacancies are anticipated by the time Obama is sworn in, according to the Alliance for Justice.

Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute, a libertarian think tank, notes that Congress has not created a new judgeship on a federal appeals court since 1991. Court filings in those courts have increased by about 50 percent since then, he said.

Democrats in Congress will introduce legislation to create more appellate court positions, Shapiro predicted, potentially giving Obama even more vacancies to fill.

Federal appeals court judgeships are extremely important, Shapiro said. “The U.S. Supreme Court takes less than 2 percent of the cases brought before it for review, so about 98 percent of the time, the circuit [appeals] courts are the end of the line and have the final say.”

As a U.S. senator, Obama was among 22 Democrats to vote against the confirmation of Roberts and one of 41 Democrats to oppose Alito.

When explaining his opposition to Roberts, Obama said “adherence to legal precedent and the rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court.”

The rest, he said, “can only be determined on the basis of one’s deepest values, one’s core values, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

Roberts had “far more often used his formidable skills on behalf of the strong in opposition to the weak.”

Obama expressed similar feelings about Alito, saying the judge “consistently sides on behalf of the powerful against the powerless.”

Stephen Bright, of the Southern Center for Human Rights in Atlanta, predicts a sea change in the types of judges nominated by Obama.

“We’re going to get a very different judiciary from someone who voted against the confirmation of Roberts and Alito than we’ve been getting for the last eight years and even during the Clinton years,” Bright said.

“Many of President Clinton’s appointees to the courts of appeals, including the 11th Circuit, were quite conservative,” he added. “I am confident that President-elect Obama will appoint more moderate and compassionate judges and bring a much-needed balance back to those courts.”

Obama will nominate more women and people of color, Atlanta lawyer Lee Parks predicted.

Obama, the first black editor of the prestigious Harvard Law Review, later taught constitutional law at Chicago Law School.

With such a legal pedigree, Parks said, Obama understands the importance of judicial nominations and may play a more active role than other presidents in the selection process.

“His nominees will no doubt be more centrist or to the left of the political spectrum,” Parks said. “But I also expect him to pick those who will bring some genius to the courts.”

—- BILL RANKIN

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U.S. Supreme Court justices and the presidents who nominated them

Judges serving on the Supreme Court and on federal district and appeals courts represent the choices of presidents dating back more than 30 years, to Gerald Ford’s administration, which ended in 1977.

John Paul Stevens, 88 —- President Gerald Ford

Ruth Bader Ginsburg, 75 —- President Bill Clinton

Antonin Scalia, 72 —- President Ronald Reagan

Anthony Kennedy, 72 —- President Ronald Reagan

Stephen Breyer, 70 —- President Bill Clinton

David Souter, 69 —- President George H.W. Bush

Clarence Thomas, 60 —- President George H.W. Bush

Samuel Alito, 58 —- President George W. Bush

John Roberts, 53 —- President George W. Bush

Judges on the 11th U.S. Circuit Court of Appeals in Atlanta and the presidents who nominated them:

President Gerald Ford

> Gerald Tjoflat, 78, Jacksonville

President Jimmy Carter

> R. Lanier Anderson, 71, Macon*

President Ronald Reagan

> J.L. Edmondson, 61, Atlanta

President George H.W. Bush

> Susan Black, 65, Jacksonville

> Stanley Birch, 63, Atlanta

> Joel Dubina, 61, Montgomery

> Ed Carnes, 58, Montgomery

President Bill Clinton

> Rosemary Barkett, 69, Miami

> Stanley Marcus, 62, Miami

> Frank Hull, 59, Atlanta

> Charles Wilson, 54, Tampa

President George W. Bush

> Bill Pryor, 46, Birmingham

* taking senior status in January

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WHAT HE SAID

“We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

—- Obama, July 17, 2007

Facing the court

A sampling of cases coming before the Supreme Court in its fall term. (These would not be heard by justices appointed by Obama, but the cases are a good representation of the kinds of issues that routinely come before the court.)

Wyeth v. Levine

A Vermont musician, Diana Levine (above), 62, lost a hand and forearm to gangrene after being improperly injected with the drug Phenergan. The trial jury awarded her $6.8 million, and Vermont’s high court upheld the verdict. Wyeth Pharmaceuticals appealed, arguing that the Food and Drug Administration’s approval of the drug shields Wyeth from liability.

FCC v. Fox

On Election Day, the court began hearing a case on whether the Federal Communications Commission may sanction foul language on the air. At issue: the use of an obscenity by Cher at the Billboard Music Awards in 2002 and by Nicole Richie on the show a year later. Arguments were likely to include words not often heard in the court.

National Resources Defense Council v. Winter (secretary of the Navy)

Conservation groups successfully sued to stop the Navy from using sonar blasts off the California coast that have been shown to harm dolphins, whales and other marine life. The appeals court upheld the verdict, but the Navy appealed, arguing that the ruling threatens sailors’ readiness.

“Judge Alito [is] a smart guy. There’s no indication that he is not a man of good character. But, when you look at his record, what is clear is that when it comes to his understanding of the Constitution, he consistently sides on behalf of the powerful against the powerless.”

—- Obama, Jan. 31, 2006

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“The first thing to know is that he knows this stuff inside and out, and he has the credentials to be easily appointed to the court himself.”

CASS R. SUNSTEIN, University of Chicago law professor and an Obama adviser.