2nd Circuit Is Back in Democrats' Hands

Though President Barack Obama lags behind his predecessor, George W. Bush, in nominating judges and getting them confirmed, he may take consolation in solidifying Democratic holds on a handful of appellate courts.

The U.S. Court of Appeals for the 2nd Circuit again has a majority of active judges appointed by Democratic presidents, after the Senate confirmed Raymond Lohier Jr. on Sunday. The New York-based court has often had a Democratic majority, but recent retirements had created a 5-5 split. Lohier, an assistant U.S. attorney who worked on the Ponzi scheme cases of Marc Dreier and Bernard Madoff, will take the seat previously held by Justice Sonia Sotomayor.

Another weekend confirmation increased the Democratic margin on the 4th Circuit. The Richmond-based court, which for decades had a conservative reputation, will have a 9-5 Democratic majority with the confirmation of Albert Diaz, a North Carolina state judge and former U.S. military judge.

The partisan margin on appellate courts can be especially important for cases that go en banc, allowing a majority of a court’s active judges to reverse a panel decision. There can also be an impact on the make-up of panels, but that’s less clear because many judges on senior status still hear cases.

The Senate confirmed Lohier on a 92-0 vote and Diaz on a voice vote. There are 26 other Obama judicial nominees awaiting final votes, and senators may confirm some of them this week.

Two years into Bush's presidency, the Senate had confirmed 83 of his nominees for district courts and 17 for circuit courts, according to Federal Judicial Center records. Obama stands at 40 for district courts and 13 for circuit courts.

Comments

[SN]

Noting is the equivalent of the Federalist Society. It is righ wing and proud of it. It has redefined judicial activism--see what the Roberts' Court has done to the concept of this country being by the people and for the people. Now it is by the Corporations and for the Corporations! While I do not for one minute believe that judges appointed by Obama are "democrats" in the way the title of this article intended, it is good to know we may have a circuit that at least believes that people should have some rights, at least some!

[Hal Davis]

==The second circuit is back in democratic hands ..... Does anyone, besides me see the tragedy in that statement?

Posted by: Bill Spohrer==

Nope.

[DB]

By "conservative" you mean "right wing" correct? Judges who think that their predecessors changed the law from what earlier predecessors ruled, so that, despite stare decisis, the right wingers want to change the law back to where it used to be? That's not a conservative judge in my book. A conservative judge respects stare decisis, and is not pursuing a political agenda of turning the the clock back to an earlier era.

[John Q. Barrett]

"Back in Democrats' Hands" is truly a tragic perspective on what judges are and do. Luckily, I am confident that the Judges (of these two Circuits, and Federal Judges generally) share my view and do, and will continue to do, their work according to their oaths: impartially. (See 28 U.S.C. sec. 453.) I hope that an item like this does not mislead people to think otherwise.

[Jeffrey Drummond]

How tragic the last years have been in politicizing the Supreme Court! The Federalist Society led the way, turning judicial appointments into choices based on political purity. As a liberal, I also condemn the American Constitution Society, the equivalent left-wing arm, for responding to misconduct by further misconduct in doing the same thing.

Now we hear news that the 5 conservative Justices have been honored guests, speakers, and even in one case an actual inviter, to plain old simple fund-raisers for Republican candidates.

Scalia's monstrous opinion on flying on Cheney's plane: 'That's how Washington works.'

I would hope that people I support would try to focus on judicial quality in judges, and not on the hyperpolitical box score.

[Bill Spohrer]

The second circuit is back in democratic hands ..... Does anyone, besides me see the tragedy in that statement?

[Mark]

Jim (5:08 p.m.), please point me to the provision in the magnificent Constitution that suggests that obeisance and fidelity to business interests and big money, as opposed to the interests of the common American, is a desirable trait for jurists in our Article III courts. Thanks.

[Jim]

With all due respect... it's not 6-5 in favor of moderate conservatives... it's 6-5 in favor of our magnificent Constitution.

[Robert Sumner]

This is irresponsible, particularly by a legal publications. Our courts are supposed to be nonpartisan, and, for the most part, are. This kind of thinking is an attack on the nonpartisan nature of our judicial system.

[DCLawyer]

"Back in Democrats hands" is the sort of misleading rhetoric that confuses the role of courts to begin with, as if its just a third legislative branch.

[anon]

One of the judges you count as a Democrat on the Second Circuit is Judge Cabranes, who consistently votes with the Bush appointees, including on major high-profile issues. So really it's still 6-5 in favor of moderate conservatives in the Second Circuit, at least in terms of active judges.