U.S. courts due for left turn with Obama

Changes likely in conservative 4th Circuit, which includes Md.

The ADF believes that the Constitution is not open to interpretation, as does the American Center for Law and Justice, founded by the Rev. Pat Robertson. That organization has lauded 4th Circuit decisions, including one upholding a Virginia law that required schools to establish a minute of silence in their classrooms so students can "meditate, pray, or engage in any other silent activity."

Today 12 of the federal appeals courts have a majority of judges nominated by Republicans; only the 9th Circuit, based in San Francisco, is majority Democratic. Within four years, Cato's Shapiro expects only three appeals courts to be majority Republican, with another one to three circuits split between the parties and the rest made up of a majority of Democratic appointees. Nationwide, 12 appeals court judgeships are vacant, according to the Administrative Office of the U.S. Courts, and four more are expected open up next year.

"Forget a second potential Obama term; Obama has a chance to flip many of the circuits" in his first term, said Shapiro, who leans toward judicial appointees who follow the rule of law without employing political sympathies.

Of the four open seats on the 4th Circuit, one has been open since 1994; another - once held by Maryland's now-deceased Francis Murnaghan - since 2000; and two others since last year. Bush nominated four people to fill the positions, including Maryland U.S. Attorney Rosenstein, but the Senate has refused to act on the nominations, which will expire once Congress turns over.

"The relationship with the Bush administration was not that good. ... We're hoping we'll have a much better relationship with the Obama administration," said Maryland Sen. Benjamin L. Cardin, a Democrat.

Groups including the American Center for Law and Justice have condemned senators for refusing to confirm Bush's nominations.

Bush's nominations encountered problems partly because he often made them without consulting senators. (Federal judges are nominated by the president and confirmed to the lifetime appointments by the Senate.) Both Cardin and Democratic Sen. Barbara A. Mikulski said they rejected Rosenstein's 2007 nomination because he was needed as the state's U.S. attorney; they expressed disappointment with the Bush administration for not understanding that.