5th Circuit Court of Appeals - Who could leave before 2017?

[politicallefty]

That was one of my first thoughts with the Texas gay marriage case. I think there's virtually no chance for President Obama to flip the Fifth Circuit. If there's any circuit court in the country I'd expect to rule against gay marriage rights, it'd be the Fifth Circuit. It's now one of only four circuits (out of 13) that have a Republican-appointed majority. Even if Obama fills the three vacant seats on the Fifth Circuit, it'd take two Republican appointees to stand down and be replaced by Democratic appointees before that court flipped. I think it'll take a Democratic win in 2016 for the court to flip, and possibly the remaining circuit courts as well. If Democrats can control the White House for three or even four consecutive terms, I'd expect all of the circuit courts to have Democratic-appointed majorities.

[politicallefty]

That decision was decided by one Reagan and two GWB appointees and is pretty much one that would be expected from that court.

Overall partisan makeup does matter for both three-judge panels and en banc hearings. The latter is for obvious reasons, and the former for basic statistical reasons. Republican-appointed judges dominate the Fifth Circuit and it shows in its rulings.

[politicallefty]

Has Obama succeeded in flipping the makeup of some courts since Reid nuked the filibuster?

The Senate has been rapidly confirming judicial nominees as of late. It is crude measure, but (in terms of active judges) Democratic-appointees control nine circuits and Republican-appointees control four circuits. Since the nuclear option, 10 circuit judges have so far been confirmed (not to mention 38 district judges), I think flipping at least the DC and Tenth Circuits. At this point, the problem is that President Obama isn't nominating judges fast enough. There are still 10 vacancies on the Courts of Appeals, but nominees for only four of those.

Based on what I've read, it's probably either the Sixth or the Eighth Circuit taking the mantle as most conservative. I'm not sure of the most liberal, though the ultra-liberal stereotype of the Ninth Circuit is vastly overrated.

Republicans seem to be doing much worse than Democrats at this over the last few decades. It's been a long time since a Democrat-appointed judge betrayed them on a hot-button social issue.

That's true, though it could be that judges generally have a tendency to get more liberal as time goes on. I'm not sure if that's actually the case or not, but there does seem to be some evidence to back that up. On the other, it is indeed hard to think of Democratic-appointees that either backfired or became more conservative as time went on. Only Justice Frankfurter (FDR) and Justice White (JFK) come to mind.

[politicallefty]

The Senate has been doing an excellent job at confirming judicial nominees. The biggest problem is that the President has been leaving far too many slots unfilled. At this point, for example, there are two vacancies on the Fifth Circuit and President Obama has yet to put forward nominees for either seat.

Once Cheryl Ann Krause is confirmed to the Third Circuit (final confirmation vote set for July 7), President Obama will have appointed 50 judges to the Courts of Appeals. At this point is their Presidencies, GWB was at 47 and Bill Clinton was at 44. Obama also has 219 district judges confirmed, while GWB was at 200 and Bill Clinton was at 222.

This is almost certainly the biggest reason as to why Democrats must keep control of the Senate for the remainder of President Obama's term.

[politicallefty]

Are you saying there are still two vacancies despite Obama filling three vacancies last Thursday? Jeez.

I missed this post, but those nominations that you mentioned above were for the district courts and not the Fifth Circuit. There are three circuit court nominations pending that will almost all certainly be confirmed relatively shortly (one to the Fourth and two to the Eleventh). That would still leave seven vacancies on the circuit courts, none of which currently have nominees. There's no reason why the President shouldn't have nominees for all of them and have them confirmed before the end of the year. The risk of losing the Senate is far too high to let any current vacancies not have nominees in place.