The Washington Post has a nice piece on the wars being waged at the appellate court level, where liberal appointees are now locked in pretty consequential battles with conservative appointees. As Steven Benen summarizes, "When Bush took office, seven of the 13 appellate courts had Republican-appointed majorities. Now, that number has increased to 10, with two more where Democratic appointees and GOP appointees are equal. Most importantly, in some circuits, if a randomly-selected three-judge panel includes two or more judges from a Democratic administration, Republican judges will insist that the entire appellate court hear the case (en banc) to ensure a conservative outcome." That's pretty bad, but my understanding is that the situation on the district court level is even worse. According to a Judiciary Committee staffer I chatted with some time back, Pat Leahy made a tacit decision to battle it out on the appellate court level -- which he did, and the situation there is better than the raw numbers indicate, at least as compared to what could have happened -- but because he feared the "obstructionist" label, picked far fewer fights over nominees for the district courts. The district courts, of course, aren't host to the politically-charged battles of the appellate courts, but are arguably more important, as they're the first line of the system and their decisions are given a fair amount of deference from the higher levels (and this is probably even truer now that the courts are packed with Republican appointees). Anyway, it's a bad scene. Though I will say, more optimistically, that I realized the other day that I could finally stop spending my days fretting over the health of Justice Stevens and Justice Ginsburg. Putting aside their occupational achievements, and in particular Stevens' masterful work building consensus from the minority, rarely have two people done the country so much good by simply surviving.
