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Wednesday, October 18, 2017

WASHINGTON (Reuters) – When President Barack Obama entered the White House in 2009, the federal appeals court based in Virginia was known as one of the most conservative benches in the country.

Two Obama terms later, Democratic appointees hold a 10-5 majority on the 4th U.S. Circuit Court of Appeals, a panel of which issued a groundbreaking ruling this April backing transgender rights.

The shift to the left on the court, which hears cases from Virginia, Maryland, West Virginia, South Carolina and North Carolina, highlights a widely overlooked aspect of Obama’s legacy.

His appointments of dozens of judges to the country’s influential federal appeals courts have tilted the judiciary in a liberal direction that will influence rulings for years to come and be further entrenched if Democrat Hillary Clinton wins this November’s presidential election.

A Reuters review of rulings by the courts over the last two years shows Obama’s appointees to the appeals courts have influenced major legal battles likely to ultimately reach the Supreme Court.

Obama-appointed judges have voted in favor of broad civil rights protections, major Obama administration regulations and gun regulations and against Republican-backed voting rules.

“There’s no question President Obama’s nominees have absolutely been part of his effort to transform the country and move it dramatically to the left,” said Carrie Severino, a conservative legal activist.

White House spokesman Eric Schultz said in a statement that Obama’s appointees “all share impeccable qualifications, unquestioned integrity, and a steadfast commitment to equal justice under the law.”

The appeals courts are the first stop for any case appealed from the lower U.S. district courts and often have the last word. The next and final destination is the Supreme Court, but it hears fewer than 100 cases a year. The appeals courts handle 35,000 a year according to the Administrative Office of the U.S. Courts.

Of the 13 appeals courts, nine now have a majority of Democratic appointees, compared with one when Obama took office, according to research carried out by Russell Wheeler, a scholar at the Brookings Institution, a Washington think tank.

In addition to appointing two Supreme Court justices and dozens of district court judges, Obama appointments now make up 55 of the current 168 appeals court judges, according to the judiciary. Obama’s current total of 323 district and appeals court appointments, most of them district court judges, is similar to the tallies achieved by other recent two-term presidents.

The regional appeals courts are currently more powerful than ever because of the vacancy on the Supreme Court caused by the death of Justice Antonin Scalia, which has left the court divided equally between liberals and conservatives. If the ideologically divided court splits 4-4, the appeals court ruling is left intact. Such an outcome occurred four times in the Supreme Court term that recently ended.

Scalia’s seat is unlikely to be filled until next year due to political opposition from Republicans in the Senate, which has the job of confirming nominees.

COURTS TRANSFORMED

One of the most dramatic transformations has been on the 4th Circuit.

In July 2007, 18 months before Obama became president, Republican appointees held a 7-5 majority. Through a mix of seven Obama appointments and retirements, Democratic appointees now hold sway.

In April, a three-judge panel featuring two Obama appointees ruled in favor of a transgender student seeking to use a boys’ restroom. The two Obama appointees were in the majority, with a Republican appointee dissenting.

Three months later, a three-judge panel featuring two Obama appointees and one judge appointed by Democratic President Bill Clinton struck down North Carolina’s strict voter identification law on a 3-0 vote, saying the state legislature had enacted it with discriminatory intent.

It is one of several recent court rulings pushing back on Republican-led efforts to impose new voting regulations, which Democrats say is intended to deter minorities from voting.

Caroline Fredrickson, president of liberal legal group the American Constitution Society, said Republican-appointed judges are generally less likely to rule in favor of broad interpretations of civil rights. The transgender case would “very likely” have come out differently with a more conservative panel of judges, she said.

The federal appeals court in Washington, D.C. is another where the balance of power has been flipped. Often known in legal circles as the second highest court in the land because it hears important cases concerning the federal government, the U.S. Court of Appeals for the District of Columbia Circuit was dominated by conservatives 6-3 when Obama took office.

Obama was able to force through four appointments after a major showdown in the Senate. The court now has a 7-4 split in favor of Democratic appointees.

In June, an Obama appointee, Judge Sri Srinivasan, cast the deciding vote as a three-judge panel upheld the Federal Communication Commission’s so-called “net neutrality” regulation. Srinivasan joined a Clinton appointee in the majority. A judge appointed by Republican President Ronald Reagan dissented. The regulation is widely opposed by the telecommunications industry and backed by digital rights advocates.

Obama’s appointees do sometimes vote in favor of conservative outcomes. Paul Watford, a judge on the San Francisco-based 9th U.S. Circuit Court of Appeals, has on several occasions reached a different conclusion to his more liberal colleagues. In one recent decision from Aug. 15, he dissented along with conservative judges when the court ruled that a death row inmate should be able to file a new appeal.

When announcing three of his nominees to the appeals court in Washington at a White House press conference in June 2013, Obama rejected any notion that they were political pawns, emphasizing their strong credentials.

“These are no slouches. These are no hacks,” he said.

A selection of recent U.S. appeals court rulings in which Obama judicial appointees played a significant role:

VOTING RIGHTS

4th U.S. Circuit Court of Appeals, July 29

A three-judge panel featuring two Obama appointees struck down North Carolina’s voter identification law on a 3-0 vote, saying it had a discriminatory intent.

TRANSGENDER RIGHTS

4th U.S. Circuit Court of Appeals, April 19

The court ruled 2-1 in favor of a transgender student seeking to use a boys’ restroom, with two Obama appointees in the majority.

TELECOMMUNICATIONS/INTERNET

U.S. Court of Appeals for the District of Columbia Circuit, June 14

On a 2-1 vote, with an Obama appointee in the majority, the court upheld the Federal Communication Commission’s major “net neutrality” regulation.

GUN RIGHTS

2nd U.S. Circuit Court of Appeals, Oct. 19, 2015

A panel featuring two Obama appointees and one judge appointed by Democratic President Bill Clinton rejected challenges to gun regulations in New York and Connecticut passed in the aftermath of the 2012 Sandy Hook Elementary School shooting in Connecticut. The Supreme Court declined to hear the case.

CLASS ACTION LITIGATION

6th U.S. Circuit Court of Appeals, July 7, 2015

The court allowed employee class action lawsuit against Wal-Mart Stores Inc to move forward. An Obama appointee wrote the opinion, while a Republican appointee partially dissented. The Supreme Court declined to hear the case.

EMPLOYMENT/CLASS ACTION

9th U.S. Circuit Court of Appeals, August 22

A three-judge panel featuring one Obama nominee in the majority ruled 2-1 in favor of the right of employers to bring class claims against employers in a case involving Ernst & Young.
When seeking to appoint judges, the White House has said it is looking for highly credentialed lawyers reflecting the diversity of U.S. society. Conservative critics say he has picked judges who are willing to circumvent the law in order to reach preferred outcomes.

Photo:U.S. President Barack Obama speaks from the Rose Garden of the White House to announce his three nominees to fill vacancies on the United States Court of Appeals for the District of Columbia in Washington June 4, 2013. The nominees will be attorney Patricia Ann Millett (R), Georgetown law professor Cornelia Pillard (behind Obama) and U.S. District Court Judge Robert Leon Wilkins (L). REUTERS/Kevin Lamarque/File Photo

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