By Reynolds Holding
NEW YORK, Nov 13 (Reuters Breakingviews) - Barack Obama's
best shot at a legal legacy doesn't lie with the highest court
in the land. Appointing Supreme Court justices attracts
attention - and controversy. But what America's lower courts may
lack in cachet, they make up for in influence. The president
could affect the law for decades by putting his allies on these
benches. What's more, vacancies currently abound.
Shaping the top court looks a stretch in any event. Liberal
Justice Ruth Bader Ginsburg, 79, could retire, but replacing her
wouldn't shift power to the left. The more conservative Antonin
Scalia and Anthony Kennedy, both 76, may also hang up their
robes, but that seems unlikely.
Obama would do better to focus on filling the 82 judgeships
- about 10 percent of the total - open on the federal trial and
appellate courts. That's where most legal disputes end up being
The Supreme Court sets big picture precedent, but in
practice, lower courts determine the law. Overall, U.S. judges
review more than 350,000 cases a year, according to the
Administrative Office of the Courts. But the justices typically
hear fewer than 100.
Federal regulations, especially, are generally hammered out
in lower courts. Statutes like Dodd-Frank and the Affordable
Care Act can't take effect without hundreds of administrative
rules, many of which are contested before three-judge appellate
panels and never appealed further.
The judges' ideology matters, too. Their decisions often
reflect the political party of the president who appointed them.
When industries challenge a regulation, for instance, Republican
appointees are more likely than Democratic ones to advocate
striking it down, according to a University of Chicago Law
School study. The opposite is true when the challengers are
public interest groups. The differences are even greater when
panels consist of three judges sharing a party affiliation.
A case in point is a recent Business Roundtable lawsuit
against rules for easing investor challenges to corporate
boards. Republican presidents appointed all three appellate
judges, and each voted to quash the rules.
Like all decisions, this one arguably followed the law. But
evidence of politics in lower court rulings seems undeniable. If
Obama wants to make his legal mark, he doesn't need to wait for
a Supreme Court justice to retire.
- President Barack Obama's re-election on Nov. 6 will allow
him to replace any U.S. Supreme Court justice who retires in the
next four years. Liberal Justice Ruth Bader Ginsburg, 79, and
conservative Justices Antonin Scalia and Anthony Kennedy, both
76, are considered the most likely to leave.
- There are 82 vacancies on the lower federal courts,
according to the Administrative Office of the United States
Courts, including 15 on the courts of appeals, which rank second
to the Supreme Court in importance. A 2006 study of appeals
courts by University of Chicago Law School professors Thomas
Miles and Cass Sunstein found that their decisions often
depended on the political party of the president who appointed
each judge hearing a case.
(The author is a Reuters Breakingviews columnist. The opinions
expressed are his own.)
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