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The more conservatives join a conservative court, the more conservative each justice gets.
The same thing doesn't appear to be true, curiously, for left-leaning judges. The authors find that the court's liberal justices are driven to vote more ideologically not when their numbers grow but when they begin to drop. The fewer justices there are on the court appointed by Democratic presidents, in other words—meaning the more outnumbered the liberal justices are—the more liberal those justices get. Even when the majority shifts only a small amount, from 5-4 liberal to 5-4 conservative, liberal justices tend to vote more liberally about 3 percent of the time. "There's a real polarization effect," says Landes.
Speaking at the Planned Parenthood conference in DC this afternoon, Barack Obama leveled harsh words at conservative Supreme Court justices, and he offered his own intention to appoint justices with "empathy." Obama hinted that the court's recent decision in Gonzales v. Carhart -- which upheld a ban on partial-birth abortion -- was part of "a concerted effort to steadily roll back" access to abortions. And he ridiculed Justice Anthony Kennedy, who wrote that case's majority opinion. "Justice Kennedy knows many things," he declared, "but my understanding is that he does not know how to be a doctor."
The net result is that the legal left will once again have a majority on the nation's most important regulatory court of appeals.
The balance will shift as well on almost all of the 12 other federal appeals courts. Nine of the 13 will probably swing to the left if Mr. Obama is elected (not counting the Ninth Circuit, which the left solidly controls today). Circuit majorities are likely at stake in this presidential election for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal. That includes the federal appeals courts for New York City, Los Angeles, Chicago, Boston, Philadelphia and virtually every other major center of finance in the country.
On the Supreme Court, six of the current nine justices will be 70 years old or older on January 20, 2009. There is a widespread expectation that the next president could make four appointments in just his first term, with maybe two more in a second term. Here too we are poised for heavy change.
These numbers ought to raise serious concern because of Mr. Obama's extreme left-wing views about the role of judges. He believes -- and he is quite open about this -- that judges ought to decide cases in light of the empathy they ought to feel for the little guy in any lawsuit.
Every new federal judge has been required by federal law to take an oath of office in which he swears that he will "administer justice without respect to persons, and do equal right to the poor and to the rich." Mr. Obama's emphasis on empathy in essence requires the appointment of judges committed in advance to violating this oath. To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most.
The legal left wants Americans to imagine that the federal courts are very right-wing now, and that Mr. Obama will merely stem some great right-wing federal judicial tide. The reality is completely different. The federal courts hang in the balance, and it is the left which is poised to capture them.