U.S. APPEALS COURTS
WASHINGTON — Democrats have reversed the partisan imbalance on the federal appeals courts that long favored conservatives — a little-noticed shift with far-reaching consequences for the law and President Barack Obama's legacy.
For the first time in more than a decade, judges appointed by Democratic presidents considerably outnumber judges appointed by Republican presidents. The Democrats' advantage has only grown since late last year, when they stripped Republicans of their ability to filibuster the president's nominees.
Democratic appointees who hear cases full time now hold a majority of seats on nine of the 13 U.S. Courts of Appeals. When Obama took office only one of those courts had more nominated by a Democrat.
The shift — one of the most significant but unheralded accomplishments for Obama — is likely to have ramifications for how the courts decide the legality of some of his most controversial actions on health care, immigration and clean air.
"With all the gridlock, it is forgotten that one of the most profound changes this Congress made was filling the bench," said Sen. Charles Schumer, D-N.Y., who led the push with the White House last summer to force the confirmation of three nominees to the U.S. Court of Appeals for the District of Columbia Circuit after Republicans blocked them.
With so many of the administration's policies facing legal challenges, the increased likelihood that those cases could end up before more ideologically sympathetic judges is a reassuring development for Obama. Nowhere has this dynamic been more evident than at the District of Columbia court, which is considered the second-most-important appeals court in the nation, after the U.S. Supreme Court.
The full appeals court agreed this month to hear Halbig v. Bur-well, a case that could unravel the system of federal insurance marketplaces established by the Affordable Care Act. Before Democrats curtailed Republicans' right to use filibusters, which they accomplished by rewriting Senate rules, the District of Columbia court was dominated by judges who were appointed by Republican presidents. Today it has four Republican appointees and seven Democratic appointees, four of whom Obama picked.
With control of the Senate at stake in November's midterm elections, the success of Democrats in reshaping the courts is a reminder of the subtle power that the majority party has even in a moribund Congress. Republicans have begun raising the issue as they try to win six seats they need to take the majority.
"It's no surprise that President Obama has been able to transform the ideological makeup of the courts; that happens when you have six years to pick judges and your party controls the Senate," said Edward Whel-an, president of the conservative Ethics and Public Policy Center. "The best way for conservative voters to prevent further damage to the courts is to swing the Senate to Republican control in the elections this November."
Though the Obama administration on its way to leaving a liberal legacy on the federal bench before Senate Democrats curbed the filibuster's power, the change in rules 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.
At the beginning of Obama's first term, the situation was reversed: 99 appointed by Republicans and 65 by Democrats. The Supreme Court remains the only court that Republicans can still try to shape through use of the filibuster.
The imprint of the Obama judges is already being felt. In July, when the 4th U.S. Circuit Court of Appeals issued an opinion declaring Virginia's same-sex marriage ban unconstitutional, the author was an Obama appointee, Henry F. Floyd. That court now has 10 full-time judges appointed by Democratic presidents and five who are Republican appointees. When Obama took office, the court had a majority of Republican appointees.