Sunday, March 15, 2009

Judge appointments are Obama's chance to shape California courts: LA Times,0,5254301.story

Judge appointments are Obama's chance to shape California courts

While campaigning, he emphasized bipartisanship and vowed to name judges with 'empathy' and 'heart.' How will those promises play out?
By Carol J. Williams
March 15, 2009
President Obama is preparing to name six new federal judges for California, an opportunity to put his stamp on the judiciary that has court-watchers recalling his campaign promises to make selections in a bipartisan manner and to name judges with "empathy" and "heart."

Many liberals say they are hoping Obama appoints lower-court judges and legal scholars guided by sympathy as well as the law, to begin reversing the sweeping conservative population of the federal bench executed by his predecessor.

Conservatives tend to argue that laws should be strictly applied to avoid infusing justice with a judge's personal views and values.

A president's choices for district courts are usually less controversial than his picks for circuit courts of appeal and the Supreme Court. District courts are relied on to simply apply the law at trial, while appeals court judges have more latitude to interpret a law's intent and context.

Because George W. Bush had so many appointments to three of the state's four federal district courts during his presidency, the benches are markedly conservative. Many of his picks may serve through and beyond even a two-term Obama presidency.

"This may not be typical of the rest of the country, but Obama may not be able to do much to affect the appointing-president balance in those courts," Russell Wheeler, a federal judiciary scholar with the Brookings Institution in Washington, said of the district courts for central, southern and eastern California.

Obama's chance to shift the balance at the appeals court level is greater, analysts say. The San Francisco-based appeals court has two vacancies now and a third opening early next year. It could see six more if Congress passes a bill seen as long-overdue relief for overwhelmed judges.

Vetting committees put together by California's two Democratic senators are already screening district court candidates, and names are being floated to the White House for the appeals court that could learn of its first new nominees next month.

Senate Republicans have already signaled their intent to challenge any Obama choices they consider too liberal by filibustering, a threat that could stall the administration's plans to quickly fill the 65 vacancies nationwide.

Some analysts see the threat as playing to the senators' conservative base more than as a genuine intention to tie up confirmations.

"Even if a larger proportion turn out to be ideological than I expect, they'll pick and choose their fights," Arthur Hellman, a University of Pittsburgh law professor and federal judiciary expert, said of the Senate Republicans, who have just a one-vote margin for stalling confirmations. "There are so many other things they care about."

Hellman points to Obama's campaign-trail call for judges with "heart" and "empathy" as an indication of the qualities he'll seek in his appointments, as well as experience handling complex cases emanating from California's leading industries.

"I think what we will see at the district court level is not ideological appointments but people with a reputation for competence and accomplishment," Hellman said, noting that judges in this state are often called upon to decide issues in entertainment, technology, biomedicine and intellectual property.

Obama has said little since his inauguration about how he'll select judges, having focused so far on quelling economic turmoil and plotting an exit from the war in Iraq.

But the courts are important to him and he'll want to appoint judges who share his ideology and values, said Peter Eliasberg of the American Civil Liberties Union of Southern California.

"Barack Obama will care about diversity and expend his political capital on judges," Eliasberg said, contrasting the new president with President Bill Clinton, who tended to back down when the Republican-controlled Congress signaled dislike for his nominees.

Wendy E. Long, legal counsel for the conservative Judicial Confirmation Network and a former law clerk to Supreme Court Justice Clarence Thomas, says Obama has sent "conflicting signals" on how he'll make his nominations.

"Empathy is a great quality and we all want to have it," Long said. "But when you walk into a courtroom and want to listen to your own heart and values, that means you're not following the law, which is what judges are supposed to do."

Sens. Dianne Feinstein and Barbara Boxer, whom the president is required to turn to for advice and consent on California judicial nominations, used bipartisan screening committees when Bush was president to find candidates acceptable to both parties. Their decisions to retain that bipartisan approach were aimed at avoiding confirmation conflicts.

"These committees are made up of highly regarded attorneys who know their legal communities well," Feinstein said in explaining her commitment to getting input from both major parties. "I am confident that the committee members will do their utmost to help me identify the most qualified candidates."

That should help limit Republican opposition to Obama's nominees "as long as people understand that the bipartisanship is going to be in the vetting, not the appointments," said Wheeler, the Brookings analyst. "I hope nobody's got their hopes up that Obama is going to be appointing 50% Republican judges."

Obama will put a premium on diversity, judicial analysts overwhelmingly predict. Of special concern to those who want to see more women and minorities on the federal bench is the Northern District of California, where all but three of the 14 judges are white and there are no Asian Americans or Latinos despite their significant populations in the region.

"I think that is an abysmal record. I can't say enough about how outrageous that is," said Niki Solis, president-elect of the San Francisco La Raza Lawyers Assn.

While Obama's campaign rallying cry for public service is expected to prompt civic-minded lawyers and legal scholars to apply for federal judgeships, some analysts worry that the best legal minds may be discouraged by the courts' noncompetitive salaries and crushing workloads.

Federal district judges earn $169,300 a year and circuit judges $179,500, both fractions of what a top lawyer can earn in private practice.

"I don't know that the prestige and even the interesting work can compensate for the financial sacrifices judges are being asked to make," said Laurie Levenson, a former federal prosecutor who is now a professor at Loyola Law School.

A bill that died in the last Congress would have created 14 new appeals court judgeships and 50 for district benches. It has been revived in the current legislative session but faces an uphill battle amid demands for funding of jobs likely to stimulate the economy.

Court-watchers expect the bill to eventually pass due to the staggering case backlogs. The 9th Circuit, which includes California, is the slowest, taking 20 months on average to decide an appeal.

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