What the Obama Administration May Mean for the Courts of Appeal & DoJ
There are articles in the latest National Law Journal and Legal Times I'd like to highlight. First, NLJ's Pamela MacLean reports, "Election reshapes legal landscape: Obama could remake circuits." Here's an extended excerpt:
By the end of a four-year term, the Obama administration could expect to turn as many as eight of the nation's 13 federal circuits from either slightly to solidly Democrat-appointed majorities. Currently, only the 9th U.S. Circuit Court of Appeals, which will have 29 judgeships, has a majority of Democrat- appointed judges.
The transition could shift the 1st, 2d, 3d, 4th, 7th 11th and D.C. circuits, with the 9th adding to its existing Democrat appointees. The Federal Circuit, which handles patent appeals, is likely to end up balanced equally with appointees from both major parties.
The most striking change could come soon after Obama takes office, with the selection of nominees to fill four existing vacancies on the staunchly conservative, 15-judge 4th Circuit.
Republican presidents have appointed eight of the 11 active judges now sitting on the court, although one of the eight was originally nominated by President Clinton and is philosophically liberal.
The court is significant as the seat of appeals for many of the national security and enemy combatant cases, and those involving the Pentagon and other federal agencies based in northern Virginia. And its judges have been contenders for elevation to the Supreme Court.
"That could be a sea change for appointments to that court," said James Brosnahan, a nationally known civil litigator in Morrison & Forester's San Francisco office and a staunch Obama supporter.
"That is the most law-and-order, conservative circuit in the country," he said. "At the end of an Obama administration, it could look quite different," Brosnahan said.
Federal appeals courts, with 179 judgeships, are often overlooked in the political rhetoric surrounding U.S. Supreme Court appointments. But the 13 appeals courts resolved more than 63,000 cases last year, while the Supreme Court considers fewer than 100 cases per year.
"Obama Lawyers Ready Their Plan for DOJ," is the Legal Times article by Joe Palazzolo.
For more than a month, a squad of lawyers has been gathering for the first Justice Department transition in the post-9/11 world. Now that their candidate has won, they're at the gates -- or rather, the 20-foot-high aluminum doors of Main Justice -- waiting for President-elect Barack Obama and President George W. Bush to finalize the rules for information-sharing and access during the transition.
The Justice Department calls its own preparation unprecedented in modern times. Under a 2004 law, the department has been vetting Obama's transition team for security clearances for more than two months. And since at least July, the department has been laying the groundwork for a new administration. Attorney General Michael Mukasey appointed his chief of staff, Brian Benczkowski, and Lee Lofthus, the assistant attorney general for administration, to coordinate the transition.
Obama has tapped Wilmer Cutler Pickering Hale and Dorr's David Ogden, the assistant attorney general for the Civil Division under President Bill Clinton, to lead the transition team. His deputy, Thomas Perrelli, managing partner of Jenner & Block's Washington office, is another Clinton administration alum. Perrelli worked under Ogden in the Civil Division as deputy assistant attorney general, supervising the Federal Programs Branch.
The transition will be twice as long as the last one and -- it's hoped -- at least twice as disciplined as the one before that. Obama's first task, the selection of the next attorney general, is likely to be fraught with the memories of Zoe Baird and Kimba Wood, whose botched nominations got Clinton's Justice Department off to a wobbly start.
The most-discussed candidate for the top spot is still Covington & Burling's Eric Holder Jr., one of Obama's top campaign advisers. But when Legal Times asked Holder in June whether he'd accept the job if offered, he said: "That ain't gonna happen." (It's unclear whether he was referring to the overture or his response were an overture to be made.)
Others mentioned are Arizona Gov. Janet Napolitano, an early Obama supporter who is now a member of his transition advisory board, and Virginia Gov. Tim Kaine, who was reportedly on the short list for vice president. Newsweek reports that Charles Ogletree, a Harvard Law School professor who mentored Obama, is also in the running.
A dark horse: Judge Merrick Garland, of the U.S. Court of Appeals for the D.C. Circuit, who served as principal associate deputy attorney general under Clinton.
Earlier related posts include:
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