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“2nd Circuit Is Back in Democrats’ Hands” . . . . What’s wrong with that headline?

Republican Justice?

Republican Justice?

I am troubled by the title of a post by Dave Ingram over at the Blog of Legal Times. It reads: “2nd Circuit Is Back in Democrats’ Hands.” The post goes on to elaborate:

Though President Barack Obama lags behind his predecessor, George W. Bush, in nominating judges and getting them confirmed, he may take consolation in solidifying Democratic holds on a handful of appellate courts.The U.S. Court of Appeals for the 2nd Circuit again has a majority of active judges appointed by Democratic presidents, after the Senate confirmed Raymond Lohier Jr. on Sunday. The New York-based court has often had a Democratic majority, but recent retirements had created a 5-5 split. Lohier, an assistant U.S. attorney who worked on the Ponzi scheme cases of Marc Dreier and Bernard Madoff, will take the seat previously held by Justice Sonia Sotomayor.

Another weekend confirmation increased the Democratic margin on the 4th Circuit. The Richmond-based court, which for decades had a conservative reputation, will have a 9-5 Democratic majority with the confirmation of Albert Diaz, a North Carolina state judge and former U.S. military judge.

The partisan margin on appellate courts can be especially important for cases that go en banc, allowing a majority of a court’s active judges to reverse a panel decision. There can also be an impact on the make-up of panels, but that’s less clear because many judges on senior status still hear cases.

The Senate confirmed Lohier on a 92-0 vote and Diaz on a voice vote. There are 26 other Obama judicial nominees awaiting final votes, and senators may confirm some of them this week.

Two years into Bush’s presidency, the Senate had confirmed 83 of his nominees for district courts and 17 for circuit courts, according to Federal Judicial Center records. Obama stands at 40 for district courts and 13 for circuit courts. (emphasis added)

Of course, I get what Ingram is trying to say. But I am not convinced that using references to “Democratic holds” or a “partisan margin” is a particularly useful way to understand the composition of a court.

While undoubtedly some federal judges may think in terms of  their political party, I actually believe that  knowing a judge’s party affiliation doesn’t tell us the same kinds of things it might about members of Congress or the President. Judges may have different ideologies, different jurisprudential approaches, and even different views of the role of the judiciary. But do such differences manifest themselves in terms of “party”? Earl Warren and John Paul Stevens were appointed by Republican presidents.  But would it be useful to think of them as “Republican justices”? And what of  Sonia Sotomayor? She was appointed by George Herbert Walker Bush to the District Court, by Bill Clinton to the Second Circuit Court of Appeals, and then by Barack Obama to the Supreme Court. How do we count her?

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.