Even With Souter Retirement, Obama Faces Limits on Remaking Courts

Ginsburg and Stevens are the two most likely to step down from the Supreme Court.

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The news that Supreme Court Justice Ruth Bader Ginsburg received surgical treatment for pancreatic cancer just weeks after Inauguration Day triggered a predictable flurry of speculation that the court's sole female jurist might retire. But it was Justice David Souter who moved first, signaling that he is stepping down in June. For her part, Ginsburg, who is 76, remains on the court and, from all indications, in good health, but the president will now fill at least one high court seat in his first term.

Like all presidents, Barack Obama will have the chance to shift the direction of the nation's courts by virtue of those he appoints to the bench and to federal prosecuting posts. Because judges serve long terms—and a single voice can carry extraordinary weight on issues from national security rulings to bankruptcy cases—the fights over judicial appointments are among the most brutal in Washington. In 2005, the Senate nearly ground to a halt over the issue of blocked federal judicial nominees before a compromise was worked out between the two political parties.

The Supreme Court, which this year will deliberate over landmark cases on campaign contributions, freedom of speech, and voting rights, could spark the biggest political fights, but there is little room to shift the court's balance. The two justices most likely to step down after Souter are Ginsburg and 88-year-old John Paul Stevens, both of whom tend to side with the court's liberal block. "Swing" Justice Anthony Kennedy and his conservative colleague Antonin Scalia are both 72. Seven of the nine justices were appointed by Republican presidents, although recent rulings have shown only a slight conservative tilt, legal observers say, with many cases decided on 5-to-4 votes. Replacing Souter, Ginsburg, or Stevens with a similarly minded jurist is unlikely to dramatically alter the court's makeup.

The landscape is similar in the lower courts, which also lean conservative after years of Republican control of the White House. According to National Journal, 54 percent of judges in district courts and 56 percent of all appeals court judges were appointed by Republican presidents. And while these courts have a lower profile than the Supreme Court, they are in many ways more influential in determining how the law of the land is interpreted. Some 30,000 cases are heard each year in appeals courts, for instance, while the high court hears fewer than 80.

It would probably take a second term for Obama to fully shift the balance in these tiers of the justice system. There are 15 vacancies on the appeals courts and 54 at the district court level. But those openings are not evenly distributed across jurisdictions, which means that it can be more difficult to shift the leanings of a particular circuit's appeals panel. In addition, the number of vacancies could rise as judges who stayed on the bench to wait for a Democratic president may take the opportunity to retire.

The process of filling those vacancies is already underway. Obama made three early judicial nominations to fill vacancies on the appeals courts. It was a safe opening gambit from the president, because all three are sitting district court judges, which means they've already been through a confirmation process and are unlikely to draw political fire if they are promoted.

Patronage. When it comes to filling district judge slots, the president traditionally consults with a senator from the state where the judge will sit to find a palatable candidate, provided that senator is from the president's party. While Supreme Court nominees are usually selected based mostly on their ideology, the district and appeals benches tend to be staffed on a different set of criteria. "In the lower courts, it is more likely that patronage and politics will be the more important factor," says Tracey George, a law professor at Vanderbilt University who studies the composition of the lower courts. Indeed, since the inauguration, Sens. Barbara Boxer and Dianne Feinstein from California have established a group to screen and interview potential judicial nominees for the vacancies in their state. The two senators, both Democrats, have agreed to alternate recommending nominees to the president.