Legal News

NYT: Right Has Reshaped Courts! WSJ: Perhaps, But the Left is Coming!

By Ashby Jones

[George Bush’s] administration has transformed the nation’s federal appeals court, advancing a conservative legal revolution that began nearly three decades ago under Ronald Reagan. — the New York Times, front page, Oct. 29, 2008

One of the great underappreciated stories of the past eight years is how thoroughly Senate Democrats thwarted efforts by President Bush to appoint judges to the lower federal courts. — Northwestern law prof Stephen Calabresi, writing in the The Wall Street Journal, Oct. 28, 2008

Of course, there’s no reason the two above statements can’t both be true — a revolution despite the Democrats’ efforts? — but the two pieces, run on successive days, left us a bit dizzy.

What’s going on here? The NYT and the WSJ survey the same landscape — President Bush’s effect on the judiciary and how an Obama Administration might change that — but come away with entirely different conclusions. (Imagine that!) Let’s take a closer look.

The Circuits of Choice: The NYT focuses largely on the Eighth Circuit, a federal appellate court centered in St. Louis. The circuit “now has the highest Republican-appointed proportion — 9 of its 11 judges — in the nation.” Calabresi’s circuit of choice: the D.C. Circuit, for which George Bush was “able to name only four” judges during his eight-year tenure. “The net result,” writes Calabresi, “is that the legal left will once again have a majority on the nation’s most important regulatory court of appeals.”

The Supreme Court: The NYT ever so slightly minimizes its importance: “While the Supreme Court gets far more attention, in recent terms it has reviewed only 75 cases a year — half what it considered a generation ago.” Calabresi sees it differently: “Here too we are posed for heavy change,” he writes, which “ought to raise serious concerns because of Mr. Obama’s extreme left-wing views about the role of judges.”

Bush’s Judicial Legacy: Calabresi sees it not quite as far-reaching as it should have been, largely because of the Democrats’ efforts. His poster child is Peter Keisler, a D.C. Circuit nominee who has been “denied even a committee vote for two years.” The NYT busts out the numbers: Bill Clinton appointed 65 judges in his 8 years; Bush has appointed 61. Clinton left office with 27 vacancies, Bush is poised to leave with 15 vacancies.

Full post as published by Law Blog - WSJ.com on October 29, 2008 (boomark / email).