Now, the great majority of the judges the next president will appoint will sit on district courts. They are important to the parties before them, and to the people and institutions in their jurisdiction. They, too, are "reasons why the next election is really important." But district judges can be overruled by the courts above--ultimately the Supreme Court, if the case ever gets there. Most don't. The Supreme Court decides many fewer cases than it used to--75 to 80 each term--and the twelve regular circuit courts, which decide 30,000 cases annually, effectively function as courts of final appeal. Which means their rulings in most criminal and civil cases, including those raising constitutional questions, are the law in their jurisdictions. There are 167 judges distributed among the 12 regular circuits, and the judges appointed to these courts from 2009 to 2013 are indeed very important "reasons why the next election is really important."
If we look at the composition of each circuit in terms of the president (Republican or Democrat) who appointed the judges and which ones are eligible for senior status during the next president's term, we can make reasonable guesses at the impact of the next president on the circuit courts. Assuming a Democratic president, by 2013, the First, Second, Fourth, Sixth, Ninth, Tenth, Eleventh, and D.C. circuits would likely have Democrat-appointed, and thus judicially liberal, majorities. But assuming a Republican president, the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and D.C. circuits--yes, all of the circuits--would
likely have Republican-appointed, and thus judicially conservative, majorities. Note that eight of the 12 circuits could go either way, depending on who the next president is. And note, too, that with a Republican president the days of the seemingly eternally liberal Ninth Circuit might finally come to an end.
Of course, in any discussion of judicial selection it is necessary to point out that if a president faces a Senate controlled by the opposite party, it may be harder for him (or her) to appoint the most compelling exponent of his (or her) judicial philosophy. Imagine the no doubt affirmative confirmation vote that would have occurred had Robert Bork been nominated in 1981 or 1986, when Republicans held the Senate. Or imagine how Roberts or Alito might have fared in the Senate had the Republicans not controlled it by a wide margin. The future of the judiciary is also at stake in the 34 Senate elections next year. And there it is not looking so good for the GOP, which, having to defend 22 seats to the Democrats' 12, could lose seats in Colorado, Nebraska, New Hampshire, and Virginia. That would reduce the number of Republican senators to 45 and make it relatively easy for a Democratic president to populate the courts with living Constitution judges.
The prospect of a Republican minority in the Senate underscores the importance especially for judicial selection of electing a Republican president. After all, in the appointment of judges, the president is the moving party: The only person who can be confirmed by the Senate is someone the president has nominated. And even if he faces a Democratic Senate with a large majority, a Republican president of sufficient skill and tenacity can see confirmed a judge who shares his judicial philosophy. Bear in mind that it was a Democratic Senate that finally did confirm Clarence Thomas.
Giuliani is right. The future of the federal judiciary is at stake on November 4, 2008. This is not an issue that divides the Republican candidates. It is an issue that divides the two parties. It is also an issue that voters, distracted by the horse-race aspect of the long campaign, may have to be reminded about, and often.
--Terry Eastland, for the Editors
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