Republican Presidents have appointed more than half of the current 179
federal appellate judges, but that could rise dramatically to 74% if Senator
John McCain wins the presidency, or give Democrats a 56% majority in
appointments if Senator Barack Obama prevails, according to a Brookings
Institution report issued on Wednesday.

In addition, the report by Russell Wheeler at Brookings, predicts that in
four years of an Obama presidency, his appointments could shift Republican
dominance on 10 of 11 circuits, to give Democrat appointees a majority in
seven circuit courts. Currently, of the 11 circuit courts, only the 9th U.S.
Circuit Court of Appeals has a slight majority of Democrat-appointed judges.

The balance of appointments could put solid Democrat majorities under Obama
on the 2d, the 3d and the notoriously conservative 4th Circuit, which
currently has four vacancies. It would add to the existing
Democrat-appointed majorities in the liberal 9th Circuit.

Obama appointees would tip another four courts, the 1st, 7th, 11th and D.C.
circuits to slight Democrat-majority appointments.

"I think this shows in striking form what it means for the courts of
appeals, depending on who is elected," said Carl Tobias, law professor at
the University of Richmond School of Law, who tracks judicial appointments.

"For the 4th Circuit [an Obama victory] would be a substantial change,
because it is the most reliably conservative court in the nation," he said.

In the 2d Circuit, it will be important because the New York-based court
hears so many of the nation's most significant business cases, Tobias said.

Wheeler cautioned that not all presidential appointees are of the same party
or philosophically aligned with the appointing president, but may represent
political deal making.

For example, President Bill Clinton appointed Judge Richard Tallman, a
conservative Republican to the 9th Circuit, in exchange for Senate
confirmation of other stalled nominations. And Judge Helene White, whose
original nomination by Clinton died in the Senate, was appointed to the 6th
Circuit by President George Bush in a deal with Democrats to release other
nominees.

"Be careful not to assume that [judicial] appointments break along party
lines," said Tobias. "History doesn't bear out that everyone votes on party
lines with the president that appointed them," he said.

The 9th Circuit's Judge Alfred Goodwin, for example, a moderate conservative
appointed by President Richard Nixon, famously wrote the opinion declaring
the words "under God" unconstitutional in the Pledge of Allegiance.

Republican presidents have named 100 of the current 179 appellate judges, or
56%, while 64 judges, or 36%, were appointed by Democrats. The remaining 15
spots represent current vacancies or judges who have said they will step
down by January for semi-retired "senior status."

A McCain victory would intensify the existing predominance of Republican
appointments on several courts, tipping the last remaining circuit dominated
by Democrat appointee, the 9th Circuit, to a Republican-appointed majority.

The Republican domination of appellate court appointments has risen since
President George Bush took office in January 2001, when the courts were
evenly divided with 76 appointees from each party, or 42% each, with 27
vacancies, according to the report.

Another factor that will affect how much McCain or Obama can shift the
percentage of appointees will depend on how many judges from the opposite
party retire or leave office.

During Clinton's eight years in office, 18 Democratic and 38 Republican
appointees on circuit courts retired. That gave Clinton the opportunity to
replace more Republican appointees with Democrats. By contrast, only
one-quarter of Bush's 60 appointees replaced Democratic appointees.

Wheeler also predicted that the new president would garner an additional 13
circuit judges as part of a judgeship bill intended to increase the overall
number of judges nationally. But the bill has failed to win approval and is
unlikely to be taken up by the lame duck Congress, which will be focused on
economic bailout measures.