31 March 2016

The Balance Of Power In The Federal Judicial System

The U.S. Supreme Court has an anomalous 4-4 spit between liberals and conservatives (Justice Kennedy remains the effective swing vote to get a majority for liberal positions, but he can no longer deliver a conservative majority), with no short term fix as the Republicans who control the U.S. Senate have promised not to hold hearings on President Obama's center-left, not young, nominee for the post.

This may fire up GOP voters who would otherwise have no hope of securing a conservative majority on the Court even if a Republican wins the Presidential election.

But, given that the prediction markets are currently giving Hillary Clinton, who would likely nominate a more liberal judge to fill the Supreme Court vacancy if she wins (and will likely have more Democratic Senators even if Democrats don't control the Senate), a 75% chance of winning in November, and the serious possibility that a President Trump (with a 20% chance of being our next President) might be fickle towards the GOP base when choosing a Supreme Court nominee, the game Republican Senators are playing will probably turn out badly for them, even if they don't lose additional seats in the Senate as a result of their conduct.

Tie votes affirm the ruling of the U.S. Circuit Court of Appeals or state supreme court from which a ruling is appealed, allowing for regional splits of authority to develop.  This happened anyway, due to U.S. Supreme Court indifference to some circuit splits, but now this splits are indefinite and certain on hot button issues.  This makes the partisan leanings of the federal circuit courts more important:
Since Democratic presidents have had the opportunity to nominate judges in 16 of the last 24 years, the appeals court system has more Democratic appointees. In the 13 different circuits, Democrats have appointed the majority of judges in nine of them, while four (the 5th, 6th, 7th, and 8th) have a majority of Republican appointees. However, there are at least two Republican-appointed judges in every circuit court, meaning that across the federal judiciary, you can still draw a three-judge appellate panel with a Republican majority. 
Since appellate courts often (though not always) follow Supreme Court precedent, a deadlocked Court also has the effect of locking in legal interpretations for the indeterminate future.
Another four years of Hillary Clinton as President would make the federal courts lean liberal even more strongly.

Of course, the state courts still exist and are functioning, a lot of important legal decisions are made by state supreme courts, Republicans have a definite geographic edge in state court appointments, it is easy enough for a wily state supreme court to avoid U.S. Supreme Court review by making decisions based upon state law in many cases, and there are simply too many state supreme courts for the U.S. Supreme Court to meaningfully oversee all of their decisions and all of the federal courts of appeals.

Expect Republicans to suddenly find a distaste for the federal courts and new found love of state courts, while Democrats do the opposite, after many years when the conservative leaning of the federal courts had made them the darlings of Republicans.

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