Sea Change for the 5th Circuit???

 

The 5^th U.S. Circuit Court of Appeals, widely viewed as one of the nation's most conservative federal appellate courts, could see a remarkable change in its makeup if President Barack Obama appoints jurists more aligned with his political beliefs in his second term.

Ten of the 15 active judges serving on the New Orleans-based court were nominated by Republican presidents. However, six of those GOP-nominated judges are eligible for senior status or will be in the next four years, a change that would allow the Democratic president to nominate their replacements.

The 5^th Circuit, whose jurisdiction covers Texas, Louisiana and Mississippi, is composed of 17 active judges. Two judges nominated by Obama already serve on the 5^th Circuit. Of the remaining active judges, six were nominated by George W. Bush; four were tapped by Ronald Reagan; two were picked by Bill Clinton and one was nominated by Jimmy Carter. The court also has seven senior judges, five of whom were nominated by Republican presidents. Currently, the Court has two open seats.

The Circuit has a reputation for being a corporation-friendly, pro-prosecutor foe of death penalty appeals and abortion rights advocates. It also tends to favor employers over employees and shows more tolerance for organized, state-sanctioned prayer than other circuits. The political make up of the bench has a lot to do with this reputation.

Federal judges do not have a mandatory retirement age and are not obligated to take senior status, a form of semi-retirement that allows them to continue hearing cases. Because we do not know how many seats may become open, even a handful of vacancies would give Obama an opportunity to reshape the court's ideological makeup during his second term. Though doubtful, it is plausible that the Democratic-nominated judges among active 5^th Circuit judges could go from being a 2-to-1 minority to holding a slim majority before Obama leaves office.

A senator from the state where a vacant seat is located can block a hearing on a nomination. Texas, Louisiana and Mississippi each have at least one Republican senator. Also, Senate rules allow any senator to prevent a confirmation vote on a nominee.

Judges are not immune from basing their retirement decisions on political considerations, so the 5th Circuit's Republican-nominated judges may be inclined to wait out Obama's second term before vacating their seats.

Obama has made a deeper imprint on the Richmond, Va.-based 4^th U.S. Circuit Court of Appeals, long considered an equally conservative court. He nominated six of the 15 active judges on the 4th Circuit, swinging the court's majority in favor of Democratic nominees.

Although a Judge’s political background is a factor in gauging how they will rule in the future, it is not always a certainty. For example, when the U.S. Supreme Court considered the constitutionality of the Obama health care law's individual mandate, Chief Justice John Roberts, who was nominated by George W. Bush, sided with the Democratic-nominated justices in upholding the law.

Even if Obama is able to fill several 5^th Circuit seats, most doubt he would try to stack the court with liberal-leaning judges. To get those he wants to appoint, Obama may need to nominate candidates with centrist credentials to avoid opposition from Republican senators who could hold up the nominations.

The President has nominated 42 circuit court judges and has had 30 confirmed as of early December. Obama's confirmation rate is fairly consistent with the first terms of Clinton, who had 30 of his 39 nominations confirmed, and George W. Bush, who had 34 of 56 nominees confirmed. The President may be picking up the pace on his appointments, however. The White House submitted 15 nominations for district court seats since Congress broke in August, far more than his most recent two predecessors did during the same period of their presidencies.