Lower Court Judges Start to Make Their Mark on the Law

An issue looming large in this election year is the ultimate composition of the Supreme Court. The newly  elected president could have up to three or four opportunities to make judicial appointments. That is significant considering that with the current composition of the Court only one is enough to potentially swing it in either ideological direction. This is already the current situation as Judge Merrick Garland stands by waiting for the Senate to act on his nomination from earlier this year.

From corpcounsel.com, collage of Obama’s judicial appointees since 2009:

But the Supreme Court is not the only court to watch with regard to political influence. President Obama has made 55 appointments during his term as president and 31 of those judges have replaced Republican nominees. Have these appointments had any effect on the decisions in the lower courts?

Appellate lawyers say it’s too early to see major swings in the law, but individual rulings on labor, class actions and administrative law show signs of a shift to the left.
“Over the last eight years the courts of appeals have become decidedly less friendly to business overall, though the Supreme Court has served as something as a check on those courts,” said Kannon Shanmugam, who leads the appellate practice at Williams & Connolly.

Obama’s appointments count for almost a third of all active judges on the circuit courts. That is a sizable number but it might not be enough for a definite shift in the law to occur unless similar changes happen at the Supreme Court.

Rex Heinke, co-leader of the appellate practice at Akin Gump Strauss Hauer & Feld, said he hasn’t observed an overhaul in areas of law affecting business over the past eight years, although the president’s nominees to the bench “are certainly more liberal than the judiciary when he came into office.”

“There would be a dramatic shift if there were liberal justices added to the Supreme Court,” Heinke said.

While all eyes focus on the Supreme Court, the presidential appointments of lower court judges will carry significant political influence over the long term.