By Dan Horn
The Cincinnati Enquirer

America's federal courts are about to undergo their most significant change in at least a decade.

Republican victories in the U.S. Senate in November are expected to clear the way this year for the confirmation of dozens of conservative judges nominated by President Bush.

No court will be more affected by the arrival of the new judges than the 6th U.S. Circuit Court of Appeals in Cincinnati, which has more open seats - six of 16 - than any other federal court. The court serves Ohio, Michigan, Kentucky and Tennessee.

Conservatives and liberals see the 6th Circuit as a kind of litmus test for the rest of the country, one that will reveal just how far to the right Mr. Bush's nominees will push the nation's federal courts.

This year, the 6th Circuit will decide some of the most important and politically charged cases in America, from the legality of partial-birth abortion to the posting of the Ten Commandments in public places.

The court's decisions in those cases will be the first clue as to how Mr. Bush's new judges will define American law - and affect millions of American lives - for years to come.

"They are going to tilt the balance of power on the courts significantly," said Allan Ashman, a spokesman for the non-partisan American Judicature Society in Chicago. "The question is how moderate they are or how radical they are in terms of conservative ideology."

It will be up to the GOP to answer that question. For the first time since the early 1990s, when Democrats held the White House and Senate, one party controls the process of nominating and confirming new federal judges.

The Republican victories last fall promise to make it much easier for the president, who nominates prospective judges, to get his choices approved by the Senate, which must confirm all judicial nominees.

That's a significant change from most of the past decade, when President Clinton and President Bush looked on helplessly as their political foes in the Senate delayed the confirmation of their nominees for months or even years.

"The president, for the next two years, is going to have a clear run at filling the bench with people he thinks will rule the way he would rule," Mr. Ashman said. "I'm not sure the Republicans will want to jam nominees down the throats of the Democrats, but they could."

One thing is certain: Republican control will put an end to the partisan bickering that delayed the confirmation of nominees and left nearly one-eighth of the nation's 850 federal judicial posts vacant.

The vacancies have caused a backlog of cases that has, in turn, delayed decisions on some of the biggest constitutional issues of the day, from death penalty cases to civil rights to affirmative action.

Republicans say a speedier process, under their guidance, is good for the country. Democrats, meanwhile, warn that the GOP will stack the courts with right-wing extremists.

"I worry about the ability of people to get a fair shake if (President Bush's nominees) are confirmed," said Nan Aron, president of the Alliance for Justice, an association of liberal civil rights organizations in Washington.

Conservatives say that kind of talk is sour grapes. They see the president's nominees as a necessary balance to liberal judges who want to rewrite laws rather than simply interpret them.

"We have many judges who have overstepped their bounds," said David Miller, vice president of the Cincinnati-based Citizens for Community Values.

"It will be a positive thing to have some new appointments on the courts."

A shift in power

The 6th Circuit will be among the first courts to find out how much the new judges will change the status quo.

Two of President Bush's nominees - Julia Gibbons of Tennessee and John Rogers of Kentucky - already have joined the court.

They are regarded by many as moderates and faced little opposition from the Democratic-controlled Senate.

Democrats are more worried about the nominees for the remaining six seats, which the Republicans will be able to fill with or without Democratic support once the GOP assumes control of the Senate this month.

The nominees include two Ohioans, Deborah Cook and Jeff Sutton, who have been described by Democrats as unworthy of confirmation and by Republicans as highly qualified.

Ms. Cook, who is scheduled to begin the Senate confirmation process Jan. 14, is an Ohio Supreme Court justice who has consistently voted with the court's conservative block. She opposed efforts to throw out the state's method of funding public schools and has voted against a Cincinnati woman's attempt to secure co-parenting rights over the children of her lesbian partner.

Mr. Sutton is a Columbus lawyer who has argued on behalf of several conservative causes before the U.S. Supreme Court, including the rights of states to resist federal laws they consider intrusive.

Neither Ms. Cook nor Mr. Sutton would comment, but their critics and supporters have had plenty to say since the pair was nominated in May 2001.

"These nominees have shown a hostility toward basic rights," Ms. Aron said.

Conservatives, however, see Ms. Cook and Mr. Sutton as the kind of judges the president should seek for vacancies across the country: Smart, thoughtful people who happen to be conservative.

"The president has a right to appoint qualified individuals with philosophies he agrees with," said Jay Sekulow, chief counsel of the American Center for Law and Justice, a conservative group based in Virginia. "That's what he has done."

When they win Senate confirmation, the new judges will get a chance to make an immediate impact at the Sixth Circuit. The court is among the most evenly divided in the country, with six judges who were appointed by Democratic presidents and four by Republicans.

"Any time you have a large infusion of new people with different philosophies, you may have a big shift," said Scott Greenwood, a Cincinnati lawyer who has argued before the court on behalf of the American Civil Liberties Union. "But it's like trying to read tea leaves as to how new judges will rule. We can't really tell."

Crucial decisions

The new judges will get a chance to show their true political stripes soon after they join the 6th Circuit.

Several of the cases now pending before the court involve hot-button issues that have for years divided liberals and conservatives: abortion, immigration and the role of religion in public life.

"All the really important cases come through the court of appeals," Mr. Ashman said. "The kinds of cases heard by the courts impact every aspect of our lives."

In the next year or so, the 6th Circuit will decide whether a Cleveland judge should be allowed to post the Ten Commandments in his courtroom, whether Ohio's ban on partial-birth abortions is legal, whether private holiday displays should be allowed on Fountain Square and whether Cincinnati has the right to bar convicted drug offenders from a "drug exclusion zone" in Over-the-Rhine.

The full court also may reconsider a ruling that bars the government from holding secret immigration proceedings for suspected terrorists.

The decisions of the 6th Circuit are crucial because federal appeals courts are the last stop before the U.S. Supreme Court for cases that raise basic constitutional issues.

And because the high court reviews only about 10 percent of appeals court rulings, the 6th Circuit and its counterparts usually have the final say.

Any philosophical shift on those courts can also shift the way the court rules in important cases. Mr. Sekulow, whose group supports the judge in the Ten Commandments' case, is counting on just that.

"A more conservative philosophy will allow for at least a role for religion in public life," Mr. Sekulow said.

Mr. Greenwood, who has argued against Cincinnati's drug exclusion zone, said a shift to the right could change the way the court regards civil liberties.

"Some (of the nominees) could be fairly alarming if their judicial philosophy matches their stances of the past," he said.

Whatever happens next at the Sixth Circuit, conservatives and liberals across the country will be watching closely. The court's future, they say, will likely mirror the future of the rest of the nation's federal courts.

"Long after George Bush leaves office," Ms. Aron said, "his judges will be making decisions that affect the lives of the American people."

E-mail dhorn@enquirer.com

New judges, nominees on the 6th Circuit Court