Future of the Judiciary

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As the race for the White House punches into overdrive, a critical factor in choosing the next president has seemingly been forgotten—federal court appointments. Russell Wheeler in the recent Brookings Institution panel, “The Next Administration and the Future of the Judiciary,” stated, “It is the makeup of the federal courts, the Court of Appeals, that is of real importance.” Wheeler, a visiting Fellow of the Brookings Institution, argued that the future Supreme Court makeup is unquestionable. “If Barrack wins, the Supreme Court will stay balanced. If McCain wins, the court will become conservative.” (This claim stems from Benjamin Witte, the panel moderator’s opening remarks that “Currently, four [Supreme Court] judges are liberal, four judges are conservative, and Anthony Kennedy decides most of the cases. Yet, two of the liberal judges, Justice Stevens and Justice Ginsburg, are due to retire.”)

The reason the Court of Appeals is increasingly important is because it makes the rulings in an overwhelming number. “With the drop in cases decided by the Supreme Court, 150 down to 60, the Court of Appeals has increased in importance,” stated Kendall, another panelist.

Edward Whelan, another panelist and President of the Ethics and Public Policy Center, stated, however, “the [ideological] makeup of the Court of Appeals is a little overrated. As in every equation, there are outliers. However, most judges’ rulings are roughly 50% conservative and 50% liberal regardless of who appointed them.” Why then does the ideology of a president matter when making court appointments? Honestly, it doesn’t. As Whelan explained, “Barack Obama believes, and I quote, “We need someone with heart, who trusts in himself and his own judgments.’”

Even Kendall, Founder and President of The Constitution Accountability Center and an Obama supporter, argued that all judges should enforce the law, specifically and especially the Constitution. “It’s the Constitution; it’s what the law says and means.”

Another Brookings scholar, Russell Wheeler, estimated that “the next president will appoint roughly 103 judges to the Court of Appeals. This includes the 14 new appellate judgeships that are likely to be created.” Kendall stated, “The courts [at the moment] are mostly homogeneous.” However, if 103 judges are appointed that hold their own beliefs above the law, the uniformity of the courts may change.

Lance Nation is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.