Court of Appeals Ideological Leanings

[David Hume]

Popping in with a bit of a dumb question for our legal experts.

I know several Courts of Appeals have particularly well known ideological bents, like the 5th circuit's conservatism or the 9th circuit's liberalism/leftism. I've taken a look at the appointing presidents in each circuit but I know that's not always a perfect measure, especially since the process used to be less partisan. But what are the general skews of the other courts?

(I know a lot of things are decided en banc anyway, but still!)

Just counting Presidents was a poor strategy 20 years ago, but it's become a better one since then as Obama and Trump nominated virtually no circuit court judges who didn't share their ideological leanings, and even Bush nominated very few (Peter Hall is gone, but I guess Helene White and Ilana Rovner -- a GHWB nominee -- are still there). Probably the best way to do this is simply to count Presidents -- you'll get a small number of errors but they'll mostly cancel out -- and also active senior judges, and count them at about 1/3 strength. (This will also have a weird distorting effect, because some senior judges maintain full caseloads and some hear a token case every few years, particularly elderly judges whose pride doesn't let them admit they're retired, but 1/3 is typical and should be about accurate in general).

This gives you the following ideological leans (at time of writing, January 24, 2022; courts are slowly moving left under the Biden Administration of course):
DC Circuit: Democrat 7.3 - 5.3 Republican
1st Circuit: Democrat 5.3 - 1.7 Republican
2nd Circuit: Democrat 9.3 - 7.7 Republican
3rd Circuit: Republican 9.3 - 6.7 Democrat (good example of a court that's about to have a liberal majority of active judges, but will continue to tilt right because there are so many Reaganite/GWB senior judges)
4th Circuit: Democrat 9.0 - 6.3 Republican
5th Circuit: Republican 14.0 - 5.3 Democrat
6th Circuit: Republican 14.0 - 5.7 Democrat (misleading, while this is a solidly right-wing court some of the Republicans here are liberal-ish; it's not at the same level as the Fifth)
7th Circuit: Republican 9.3 - 3.0 Democrat
8th Circuit: Republican 11.0 - 1.0 Democrat (the only total win in America -- liberals cannot win a three-judge panel here)
9th Circuit: Democrat 19.7 - 16.7 Republican (not that liberal anymore but there's still an advantage; note that the Ninth has a unique rule that 11 randomly selected judges, rather than the whole court, sit en banc, so even en banc sittings here are winnable for conservatives)
10th Circuit: Democrat 7.3 - 6.3 Republican
11th Circuit: Republican 8.7 - 5.0 Democrat
Fed Circuit (nonideological, just for fun): Democrat 9.0 - 5.3 Republican

This is pretty good. The most liberal Circuit nowadays is probably the Fourth (even though it largely covers some conservative states!) rather than the Ninth, which still tilts liberal but is more closely contested. Speaking very generally, and I think this has become less true with Trump-appointed judges taking office, conservative-dominated courts in the South (particularly the Fifth and Eleventh) tend to be more strident than conservative-dominated courts in the Midwest (the Sixth, Seventh, and Eighth). The Eighth certainly should be the most conservative circuit but in practice it somehow seems to be the Fifth.

Something like this exists on the liberal side, too -- the Fourth seems more strident than the First or Second. Judges in the American South just seem to be more ideological.

(Note that under this metric, SCOTUS is Republican 6.0 - 3.0 Democrat, since they don't allow senior judges.)

Good sources for ideology on the courts might be The Vetting Room, which is written from a liberal perspective and discusses the biographies and perspectives of new incoming judges, or from a conservative perspective and from late 2019, a series from RRH called "President Trump and the Judiciary".

Helene White is a Solid D and a compromise pick. Ilana Rovner is Souter.

[David Hume]

Just counting Presidents was a poor strategy 20 years ago, but it's become a better one since then as Obama and Trump nominated virtually no circuit court judges who didn't share their ideological leanings, and even Bush nominated very few (Peter Hall is gone, but I guess Helene White and Ilana Rovner -- a GHWB nominee -- are still there).

On the other side of things, the only Clinton judge who regularly pops up in voting with conservatives is Judge Tallman on the 9th. There's a handful of outliers here (Gregory on the 4th...) and it may be easier to just learn who they are.

I think the most conservative Dem judge is José A. Cabranes. Gregory is a Dem pick that Bush renominated.

[David Hume]

It should also be noted as a general matter that there are definitely judges out there who are ruling differently (i.e., more moderately) at the trial & intermediate appellate levels than they would be if they were one of the Supremes. See: RBG.

Yeah, I counted Gregory as a Clinton-appointed judge. Tallman is probably the premier example of an active Conservadem, while White is the most liberal Republican (because she was an explicit liberal appointed as part of an agreement with Carl Levin (D-MI), who actually nominated her). Often these outliers nowadays are to get the support of specific Senators for specific policies, where a single judgeship is seen as inconsequential enough to use as a bargaining chip.

To be explicitly clear, W. still nominated her. Levin & Stabenow merely played the role of telling him that her nomination was required if he wanted a chance in hell of them signing off on Kethledge's blue slips so that he could get confirmed.

I would just count here as a D, since she was originally nominated by Clinton but blued by R senator.

RBG was moderate in her first few years on SC. She just evolved like Stevens and many others.

[David Hume]

This is pretty good. The most liberal Circuit nowadays is probably the Fourth (even though it largely covers some conservative states!) rather than the Ninth, which still tilts liberal but is more closely contested. Speaking very generally, and I think this has become less true with Trump-appointed judges taking office, conservative-dominated courts in the South (particularly the Fifth and Eleventh) tend to be more strident than conservative-dominated courts in the Midwest (the Sixth, Seventh, and Eighth). The Eighth certainly should be the most conservative circuit but in practice it somehow seems to be the Fifth.

That's only surprising in principle, but not in practice. First, look at the geography of each circuit. Second, look at the states comprising each. California doesn't push liberalism anywhere near as much as Texas pushes its conservatism now. The Fifth Circuit also covers Mississippi, which has also not been shy on pushing laws that are sure to reach the federal courts.

Right-wingers also like to do some forum shopping and love to pick Texas. They love to go to the Northern District of Texas and get Judge Reed O'Connor. If you don't know who that is already, you're in for something. I'm surprised he hasn't tried to strike down Social Security or Medicare. Even the Fifth Circuit as a whole isn't that right-wing.

I didn't realize until now how bad the Eleventh Circuit had become. It had an 8-3 Democratic-appointed majority when Obama left office. It's 7-4 Republican now.

There is a ATL based vacancy right now. It's interesting that Biden nominated Nancy Abudu for that GA seat, who was born in VA and mainly worked in FL. I am not sure how would the two D senators from GA handle that.

[David Hume]

So, the ideological balance of the Federal courts outside of SCOTUS is actually pretty balanced?

Not really. D have a sizable lead DC, 1st, 4th only. 2nd, 3rd, 9th, 10th are close. R have a sizable lead in all others.

[David Hume]

8th Circuit: Republican 11.0 - 1.0 Democrat (the only total win in America -- liberals cannot win a three-judge panel here)

Conservatives are quite close to that point on the First Circuit. The last Republican-appointed judge on that circuit is assuming senior status soon (a GWB appointee). Two Republican appointees with senior status are no longer actively hearing cases. Assuming Biden gets a successor confirmed, that would leave zero Republican-appointed judges in active service and two in senior status (including the quite interesting Bruce Selya).

Everything that you've said is technically correct, although it should be noted that Judge Gelpí was a W. appointee on the district court in PR &, for a Biden judge, is ruling well to the right of the mainstream, having just voted with Chief Judge Howard & the 'conservative' position in 2 immigration cases as well as in a recent 1A en-banc vote.

Why would Biden do so? There is nothing to stop him from nominating a liberal to that seat.

And most R senators voted against Judge Gelpí.

[David Hume]

Conservatives are quite close to that point on the First Circuit. The last Republican-appointed judge on that circuit is assuming senior status soon (a GWB appointee). Two Republican appointees with senior status are no longer actively hearing cases. Assuming Biden gets a successor confirmed, that would leave zero Republican-appointed judges in active service and two in senior status (including the quite interesting Bruce Selya).

Everything that you've said is technically correct, although it should be noted that Judge Gelpí was a W. appointee on the district court in PR &, for a Biden judge, is ruling well to the right of the mainstream, having just voted with Chief Judge Howard & the 'conservative' position in 2 immigration cases as well as in a recent 1A en-banc vote.

Why would Biden do so? There is nothing to stop him from nominating a liberal to that seat.

And most R senators voted against Judge Gelpí.

Gelpí was the choice pushed by leading members of the New Progressive Party, which currently includes both Gov. Pedro Pierluisi (a Democrat) and Resident Commissioner Jenniffer González (a Republican). He was known to be a moderate from his history as a judge (he was appointed to the district court by Bush and had made donations to members of both mainland parties), and island progressives were advocating for a different choice, Gina Méndez-Miró, who sits on a territorial appellate court. Biden certainly could have gone with a more liberal appointee for this seat — there are some rumors that he plans to do so for future judicial vacancies linked to Puerto Rico — but in this case he chose not to risk alienating the local politicians who supported Gelpí.

The vast majority of Republican senators are opposed to any Biden nominees to any court. The fact that they voted against Gelpí, who's had a spotless record over two decades as a federal judge, says more about the state of the Republican Party than it does about any particular judge.

I remember the previous R nominee was pushed by Jenniffer González, and he seems moderate. Graham even held the hearing for him, hoping Biden to renominate him, like Bushed did for Judge Gregory. If Biden are not determined to nominate a liberal, why didn't he just renominate him to get bipartisan support?

There were some nominees who got much more support than Gelpí, like the one to the Federal circuit, and some to the district court. But Gelpí was almost party-line. I find that surprising, since a moderate should be better for R anyway.