I’m not that old but I remember back when people didn’t count partisan majorities on the Circuit Courts of Appeal, as if they were state legislatures. That seems to be post-2001 phenomenon. Not that judging was ever free of politics, of course, but before Bush v. Gore judges seem to have been somewhat more willing to keep it in their pants rather than bloc voting along party lines and less willing to engage in procedural cheating to make sure their side had the votes.
Now Barack Obama has the chance to turn the tables. But that’s naturally a slow process.
Of course, with growing population and caseloads, there’s probably a need for a significant expansion – at least 20% – in the number of appellate judges. At least, I have no doubt that the Congress could establish a suitably respectable commission that would so determine. And then there’d be no reason not to follow that recommendation, would there?
