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Sunday, January 15, 2006
More on the Politics of Judicial Nominations
By Dr. Steven Taylor @ 3:06 pm

From the same article as referenced in my previous post there is a discussion (and a graphic) about the fact that a majority of current federal judges, and overwhelming majority on SCOTUS, have been appointed by Republican Presidents:

Mr. Bush has now appointed one-quarter of the federal appeals court judges, and, assuming that Judge Alito is confirmed - the Judiciary Committee vote is expected to occur in the next 10 days - will have put two self-described conservatives on a Supreme Court that has only two members appointed by a Democratic president.

There is also the following chart:

However, none of this should be considered a major shock, given the fact that the GOP has been more successful at electing Presidents over the period under consideration. (The data from the chart in question comes from the web site of the Alliance for Justice, and this table).

First off, one would expect more recent Presidents to have the highest number of appointees. And, indeed, the President with the most appointees is President Clinton, whose appointments make up 39.1% of the federal bench. President Bush is second with 25.5%. Given age and such, one would expect that the most recent two-term president would have the highest number of appointees. One would expect that by the end of Bush’s 2 terms, that we would have numbers similar to Clinton’s.

Second, 90% of the federal judiciary as per the chart, have been appointed since the Reagan administration (there are still 25 Carter appointees, 4 Ford, 4 Nixon and 1 from Johnson on the bench). Given that from 1981-onward, there have been four full terms served by Republicans (plus the first year of W’s 2nd term) and two terms for a Democrat, the fact that Republicans have filled 55ish% of the federal judiciary isn’t all that surprising, and indeed hardly qualifies as a failure for Democrats.

The solution to influence the bench is clear: the Democrats need a two-term President to follow Bush.

In regards to the Supreme Court, we know that 7 of 9 are Republican nominees. The presidencies of relevance for the current Court are Ford to Bush. Of that period of time we have 6 terms (counting Ford’s partial term and Bush’s partial term to date) for Republicans and 3 terms for Democrats. So, controlling 67% of the terms during the period in question, the Republicans control 78% of the seats. Given the small sample size in question (9 seats) this does not strike me as especially out of sync. And, when one considers that in terms of ideological predilections that two of the Republicans (Stephens and Souter) tend to the liberal side of the equation, we see an ideological split that is roughly 5-4. Again, this is hardly a situation that could be considered failure from the Democratic POV (if we are being objective, that is). And along those lines I would again point to the analysis of Charles Franklin on Alito’s likely effect on the Court.

I would make a couple of final points:

  • As Stephens and Souter (or even Anthony Kennedy, or going back in time, Earl Warren) demonstrate, we really don’t know how a justices will behave over time-although I will grant that Alito seems to have a very clear record that would indicate his likely behavior in the future.
  • Even though Republicans have had the lion’s share of influence over the court, there is a feeling amongst conservatives that the courts are too liberal, and seemingly a feeling among liberals that the current judicial regime should be protected. If these things are both true, it may mean that, for whatever reason, Republican appointees aren’t as conservative as Democrats fear or as the Republicans Presidents who appointment them think they are.
  • Following on that last point: conservative justices are quite prone to respecting precedence and also less prone to being activists-as such, conservative judges may not be as “dangerous” as liberals think that they are.
  • Of course, much of the partisan and ideological hand-wringing may be the result of just counting to keep score without really analyzing what is going on.


  1. […] se comments on the NYT piece that has worked out to be a big focus here at PoliBlog today (here and here). She makes several of the same points as did I: the solution for the Democrats is winning ele […]

    Pingback by PoliBlog: A Rough Draft of my Thoughts » Althouse and the “Glum Democrats” — Sunday, January 15, 2006 @ 3:51 pm

  2. Of course, much of the partisan and ideological hand-wringing may be the result of just counting to keep score without really analyzing what is going on.

    I think that’s really the crux of the issue. It does you no good as a party to say “well the other guys won, but so far they haven’t done any damage.”

    Comment by bryan — Sunday, January 15, 2006 @ 6:30 pm

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