Court of Appeals Ideological Leanings

[politicallefty]

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.

[politicallefty]

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).

I think it's also worth noting that former Justice Souter also sits by designation on the First Circuit from time to time. I imagine Justice Breyer would probably like to sit by designation on the circuit courts (or even district courts, as then-Justice Rehnquist did once while on the Court) from time to time, although I don't think there's anything in particular that would necessarily mean he would have to or want to sit on the First Circuit in particular.

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.

I'm really not sure how that works anymore. However, her nomination submitted to the Senate states that she is from Georgia. I would assume that she has since moved to Georgia, likely the Atlanta area.

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.

It's worth remember that the DC Circuit's importance is what ultimately led Democrats to unleash the nuclear option over Republican intransigence. Republicans were outright not allowing any further nominees to proceed after the confirmation of Sri Srinivasan.

And yeah, the overall balance is roughly 53%R/45%D. Most Biden appointments so far are filling Clinton-appointees assuming senior status, but there are some Republican-appointed slots that have opened and started opening. McConnell was disturbingly effective at moving Trump's nominees through the Senate. He got in one term what GWB and Obama got in two.

If Democrats lose the Senate this year, I'm guessing at best Democratic-appointees take a narrow advantage and maybe a very select few get past McConnell. If Democrats can hold the Senate, I expect Schumer to play McConnell's game to the letter.

One thing that is interesting though is that even after four years of relentless judicial confirmations under the Trump/McConnell team, R-appointed judges only took a 318-317 lead at the end of 2020. That has since reversed in the other direction to a 314-296 advantage (and growing).

[politicallefty]

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.

That's a good point. I don't know the biographies of most circuit judges. That is why I generally tend to use party-appointee as opposed to liberal or conservative. That said, there are a number of judges that are the other way around. I think we all tend to try to oversimplify these things outside SCOTUS itself.

Unfortunately, Justice Souter hasn't sat-by-designation since Jan. 2020. Hopefully he'd like to return after the pandemic.

Interestingly, he was on a panel in 2020 for a Fourth Amendment case that was unanimously overturned by the Supreme Court (Caniglia v. Strom) last year.

Something tells me that the fact that Justice Breyer's home is <5 mi. from the First Circuit's main courthouse would probably make it an easier choice to sit-by-designation on than, say, the Fairbanks duty station on the district court in AK

I wasn't aware that Justice Breyer still had a residence in the First Circuit. Obviously, I knew Justice Souter did, particularly because he was known to hate DC (which was apparently the main reason he retired). Justice Breyer strikes me as the type that wouldn't mind doing some work at the district court level in addition to work at the circuit court level. It's sort of a shame we don't have some form of senior status work for the Supreme Court itself, especially for those cases where sitting Justices recuse themselves.

[politicallefty]

I made this post almost a year and a half ago:

It's good that Biden's finally getting judges confirmed. The courts are a mess right. In terms of active seats, this is what the circuit courts look like:

This is the best Biden can do based on current vacancies:

When it comes to all the talk about the so-called crazy Ninth, it's only a 16-13 Democratic-appointed majority. Trump has appointed 10 of those 13! The Eight Circuit is even worse, with a 10-1 Republican-appointed majority.

With that said, this illustrates why it was so important for Reid to go nuclear in 2013. The powerful DC Circuit Court will have a 7-4 Democratic-appointed majority once Ketanji Brown Jackson is confirmed. If the nuclear option hadn't been exercised then, the three Obama appointees would've gone to Trump. Biden's also set to get another nominee to the DC Circuit when Clinton-appointee David Tatel takes senior status.

So, let's see where we're at now in terms of active judgeships and assume all pending nominations are confirmed:

With only four circuit vacancies without names, I won't make a second map. However, the 4th Circuit would become one shade darker red and the 7th Circuit would move one shade lighter blue.

What happened since then was that a GWB appointee on the 3rd Circuit took senior status, moving that court to a tie once the nominees are confirmed. The 1st Circuit no longer has any active Republican-appointed judges upon a GWB appointee assuming senior status. The 2nd Circuit nominally flipped after Biden filled the seat of a GWB appointee who died early last year, though probably retains a moderate-conservative lean until Judge Cabranes assumes senior status upon the confirmation of his successor.

Curious where this may go with Democrats retaining the Senate.

Younger Republican appointees who have not taken senior status are very "packed" into the 8th circuit (several Upper Midwest/Northern Plains states) and 5th circuit (Texas, Louisiana and Mississippi), which are 11R/1D and 8R/4D, respectively.  The 1st circuit (New England and Puerto Rico) is unanimous Dem, but it is much smaller (6D/0R).  The other circuits generally have one party or the other leading by a judge or 2.  It seems likely that Democratic appointees would have a majority on all federal circuits but the 5th and 8th by the end of Biden's term, assuming the senate majority stays Dem to the end and they are all willing to confirm Biden judges all the way through to the end of 2024.

I repeated part of what you said, but your numbers on the 5th and 8th are incorrect (which are currently 12R-4D and 10R-1D, respectively). Biden can pull the 5th back to 12R-5D by filling the Texas seat. But yeah, those two courts are absolutely brutal for the left. I would say there's a low chance of the 3rd Circuit flipping when you consider that the oldest R-appointed judge is only 65. The 6th Circuit has too many Trump appointees to realistically see flipping (or even tying). The 7th Circuit will become 7R-4D once Biden gets both openings filled and it's worth noting that a GHWB appointee is 84 years old. Interestingly, two Trump appointees on that court were approved unanimously and appear to be fairly moderate. The 11th Circuit (7R-5D) likely won't budge either, with literally half the court having been appointed by Trump and the seventh R judge being staunch conservative William Pryor.

Obviously, I was only looking at age. Judges leave active service for a multitude of reasons, both planned and unplanned. Some Republican-appointed judges will surely leave the bench over the next years, though I certainly wouldn't expect many. So far, most of the work has been refreshing the active judgeships and expanding the pool of senior judges (the latter of which were, and still largely are, dominated by Reagan/GHWB/GWB appointees). The DC Circuit is effectively the crown jewel for the left right now, which will be a 7D-4R majority where the oldest in that majority was born in 1961 (with the youngest being born in 1986).