Democratic Shift in the Lower Courts

Though the Obama administration was well on its way to leaving a lasting liberal legacy on the federal bench before Senate Democrats curbed the filibuster’s power, the rules change sped up the confirmation process. Today, the number of circuit judges appointed by Republican presidents is 77, compared with 95 by Democratic presidents, according to statistics kept by Russell R. Wheeler of the Brookings Institution.

A NYT article provides some analysis of the swing in the federal courts after six years of a Democratic President, perhaps helped by the graying of judges from twelve years of Reagan/Bush.

In part, it noted that though Obama spend less time and capital early on, hard Republican opposition did lead to more liberal picks and additional effort. The biggest move, something still sadly mostly inside baseball, was the end of the filibuster for executive appointments. Something many probably would have been surprised was in place and likely opposed to overall. Who knows as to the latter. The article does show the importance of those in power, both in the Senate and White House, in respect to the personnel on the federal courts.  And, since that is surely not fungible....

I have been talking about this online (and in a couple letters to the editors) at least since the early days of the Bush Administration. It is somewhat reassuring to watch things swing though it does mean eventually it will swing back.  How that will work out might be the rub. Anyway, putting aside the importance of retaining the Senate, this underlines that the courts do have some electoral accountability.  We vote for those who put them in. This provides an important influence on how the law develops long term. In his Cooper Union speech Lincoln said this:

When this obvious mistake of the Judges shall be brought to their notice, is it not reasonable to expect that they will withdraw the mistaken statement, and reconsider the conclusion based upon it?

It is more reasonable to assume that Republicans would have put in new judges who would so reconsider.  The flexibility of the situation in this and other areas was a major reason why the slave power (to use the Republicans' term) was so concerned about the new party gaining power. The meaning of the Constitution and the law in general appeared rather clear to both sides. The ultimate result depended and depends on who is there to apply it. 

"Living" Constitutionalism indeed.