What Next for the Third Branch?

The new president will have a chance to significantly reshape the judiciary. President Bush managed to confirm only 321 judges—about 50 fewer than Presidents Reagan or Clinton—so there are plenty of vacancies to fill. Moreover, Congress has not created any new circuit court positions since 1991, while federal appellate filings increased by about 50 percent since that time; only four percent more district judges have been created during the same period, while filings to those courts increased by about 25 percent. We can expect, perhaps even in the “first 100 days,” a new judgeship bill that will add to the vacancies President-elect Obama will have to fill. 56 percent of federal judges are now Republican appointees, and the Ninth Circuit (based in San Francisco and sprawling across nine western states) is the only federal appeals court with a majority of judges appointed by Democratic presidents. Obama will be able to change the former statistic and swing control of all but three circuits (of the thirteen) to Democratic appointees. And then, of course, we have the two or three Supreme Court nominations the new president will probably have in the next four years: Justices Stevens, Ginsburg, and Souter are each likely to be off the Court by 2012. It is not for nothing that pundits consider judges to be one of the most undervalued policy areas in this long, strange campaign.