McCain or Obama Would Have Significant Impact on Federal Judges, Abortion

National   |   Steven Ertelt   |   Sep 12, 2008   |   9:00AM   |   WASHINGTON, DC

McCain or Obama Would Have Significant Impact on Federal Judges, Abortion

by Steven Ertelt Editor
September 12
, 2008

Washington, DC ( — The winner of the presidential election will have a chance to appoint not only one or more Supreme Court judges but will be able to markedly shift the judicial landscape nationwide. That’s the result of a new study conducted by the Brookings Institution in Washington.

Brookings research director Benjamin Wittes points out that the Supreme Court is primed for a strong shift in the conservative or liberal direction.

The court is currently considered a tossup with four liberal and four conservative judges and Justice Anthony Kennedy a tossup. That’s how it plays out on abortion with at least a 5-4 majority in favor of keeping Roe v. Wade and its opinion for unlimited abortions in place.

Because the pro-abortion judges are older and likely nearing death or retirement, the next president could determine whether abortion stays legal throughout pregnancy for another 35 years or if states can protect women and unborn children.

But the reach of a president goes beyond the nation’s highest courts — to appeals and district courts that decide the overwhelming number of cases.

"Collectively at the lower court level and individually at the Supreme Court level, those nominees do incrementally and sometimes quite dramatically affect the direction of the law," Wittes said.

Russell Wheeler, a visiting fellow at Brookings, examined the data on the lowers courts and showed how presidents can change the tide of the direction of the courts.

During President Clinton’s two terms, he was able to change the number of Republican appointees during the Reagan and Bush terms from 64 percent in 1993 to 41 percent in 2001 while the number of Democratic judges increased from 21 percent to 44 percent. (The rest of the judgeships were vacant.)

In his eight years as president, Bush has been able to move those numbers back to a 56-36 percent split in favor of Republican judges.

Looking ahead, Wheeler said McCain could shift the judicial percentages in favor of pro-life advocates.

"Overall, McCain would be able to increase the number of Republican appointees up to 74 percent – a very strong majority," he said.

Under Obama, the number of Democratic judges could conceivably go to 58 percent and the Supreme Court could have a roster of young abortion advocates ready to keep unlimited abortions in place for decades.

A McCain victory could put a GOP majority in place in all 13 of the federal appeals courts, which frequently decide the outcome of state laws that limit abortions. An Obama win could leave Democratic majorities in place in eight of the circuits.

"Aside from the Supreme Court, you could say this election could make a difference in terms of the composition of the courts of appeals measured by judges appointed by president of the two different parties," Wheeler said.

Obama has already promised a pro-abortion litmus test for judges while McCain has said he will appoint judges who will not make up the law from the bench.

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