2/1/09: The US Fourth Cir­cuit Court of Appeals hears appeals from fed­er­al dis­trict courts in West Vir­ginia, Vir­ginia, Mary­land, North Car­oli­na, and South Car­oli­na. The Fourth Cir­cuit has 15 judges when all of the judi­cial posi­tions are occu­pied. How­ev­er, 4 of the 15 judge posi­tions are cur­rent­ly vacant. That means that Pres­i­dent Oba­ma will be able to appoint those 4 judges.

Appoint­ments to these fed­er­al judi­cial posi­tions require the con­fir­ma­tion by the US Sen­ate. The Democ­rats con­trol at this time 58 votes in the Sen­ate, through 56 Democ­rats and 2 Inde­pen­dents (Joe Lieber­man, CT; Bernie Sanders VT) who cau­cus with the Democ­rats. If Al Franken even­tu­al­ly is declared the win­ner in Min­neso­ta, which is expect­ed, the democ­rats will have 59 votes. Pres­i­dent Oba­ma only needs 51 votes to con­firm one of his judi­cial nom­i­na­tions. If the Repub­li­cans chose to fil­i­buster any of Pres­i­dent Oba­ma’s nom­i­na­tions, the Democ­rats need 60 votes for clo­ture to cut off the fil­i­buster and force a vote (clo­ture requires a three-fifths vote of the vot­ing Sen­a­tors). If the Democ­rats will be start­ing with 59 votes, they will like­ly fre­quent­ly be able to “peel off” a Repub­li­can or two to break the filibuster.

Fed­er­al court of appeals nom­i­na­tions are usu­al­ly made from lawyers with sig­nif­i­cant pri­or judi­cial expe­ri­ence. So the pool of lawyers to be con­sid­ered will like­ly by the cur­rent fed­er­al dis­trict judges, and, less like­ly, cur­rent state court judges.

Giv­en Pres­i­den­tial his­to­ry since 1980, the sub­stan­tial major­i­ty of fed­er­al judges are appointees of Repub­li­can Pres­i­dents (20 years of Repub­li­can pres­i­den­cy ver­sus 8 years of Demo­c­rat presidency).

Of the cur­rent 11 judges on the Fourth Cir­cuit, 6 were Repub­li­can appointees and 5 were Demo­c­ra­t­ic appointees (although Judge Gre­go­ry was a “hybrid” hav­ing orig­i­nal­ly been appoint­ed by Pres­i­dent Clin­ton and then re-appoint­ed by Pres­i­dent George W. Bush). You can view a chart on Wikipedia that sets out the line­up of cur­rent judges and the Pres­i­dents who appoint­ed them

Assum­ing Pres­i­dent Oba­ma fills all 4 cur­rent vacan­cies, then we will have a realign­ment on the Fourth Cir­cuit to: 9 Demo­c­rat appointees, and 6 Repub­li­can appointees.