How liberal is your federal circuit court?

A lot of attention is paid to the ideological balance of the Supreme Court, which is the ultimate arbiter of too many things in America nowadays.  But the Supreme Court can afford to hear only a small number of cases.  Most cases don't make it past the various circuit courts of appeal, and so the ideological makeup of these courts is important as well.  Unfortunately, over eight years, Obama packed them with leftists as much as he could.  And yet, some circuit courts have better partisan balances than others.  Here, then, is a list.

First Circuit (Maine, N.H., R.I., Mass.): The First Circuit has four Democrats and two Republicans and no vacancies.  By the way, "four Democrats and two Republicans" is shorthand for four judges appointed by Democrats and two judges appointed by Republicans.  I presume they are one and the same, but they may not always be.  This is a solid leftist circuit and will be for some time to come.

Second Circuit (N.Y., Vt.): The Second Circuit has four Rs and seven Ds and two vacancies.  Even if Trump fills both, Dems will still have an absolute majority.  On the other hand, it's only New York and Vermont, so how much do we really care?

Third Circuit (Pa., N.J., Del.): The Third Circuit has five Rs and seven Ds and two vacancies.  Trump appointed one of the Rs.  If the two vacancies are filled, the court could become evenly split.

Fourth Circuit (Md., W.Va., Va., N.C., S.C.): The Fourth Circuit has five Rs and ten Ds and no vacancies.  This will be a hard-left court for some time to come.

Fifth Circuit (Texas, La., Miss.): This circuit has 10 Rs and five Ds and two vacancies.  Two of the Rs were appointed by Donald Trump.  Mysteriously, this circuit seems to have been protected by the rampage of leftists inflicted on the other circuit courts and is one of the most conservative in the country.  Don't mess with Texas.

Sixth Circuit (Mich., Ohio, Ky., Tenn.): This circuit has eleven Rs and five Ds, and three of the judges were appointed by Donald Trump.  Like the Fifth Circuit, it's an oasis of conservatism.

Seventh Circuit (Wis., Ill., Ind.): This circuit has six Rs and two Ds and three vacancies.  One of the Rs was appointed by Donald Trump.  Another surprisingly conservative court.

Eighth Circuit (N.D., S.D., Neb., Minn., Iowa, Mo., Ark.): This court has nine Rs, one D, and one vacancy.  Trump appointed two judges here.  Yet another conservative court.  Does this surprise you?  It surprises me.

Ninth Circuit (Calif., Wash., Ore., Idaho, Mt. Nev., Ariz., Alaska, Hawaii):  The Ninth Circuit covers a huge area, and there have been many proposals to break up the circuit into two, always resisted by the minority party, who fears that the majority party would pack the new court.  The Ninth Circuit has a reputation for being a hard-left court, and that reputation is well deserved, with seven Rs and 18 Ds and four vacancies.  Even if Trump fills all the vacancies, this court will be to the left of the Comintern for some time to come.

Tenth Circuit (Wyo., Utah, Colo., Kan., Okla., N.M.): This court has five Rs and seven Ds and no vacancies.  Trump appointed one of the Rs.  A close split, but no opportunity to improve at present.

Eleventh Circuit (Ala., Ga., Fla.): This court has four Rs and eight Ds and no vacancies.  Trump appointed one of the Rs.  It's surprising that Alabama and Georgia, very conservative states, are ruled by such a leftist circuit court.

D.C. Circuit (D.C.): The D.C. Circuit court covers the smallest geographical area but is really the second most powerful court after the Supreme Court because it hears cases based on regulations promulgated by federal agencies located in the District of Columbia, of which there are many.  There are four Rs, seven Ds, and no vacancies.  Trump appointed one judge.  Unfortunately, there are no prospects for improvement any time soon.

There is also a Federal Circuit Court that covers things like patents.

What surprised me the most after examining this data is how few courts could shift from Trump appointments.  Most circuit courts are already so far left or right, and there are so few vacancies, that Trump can really affect the balance only on the Third Circuit.  Obviously, this can change over time as vacancies appear, but the partisan balance of the circuit courts aren't going to change dramatically any time soon.

There are three important caveats to note.

1) Democrat = reliable liberal, but Republican doesn't always equal reliable conservative.  Every Democratic judge appointed always lives up to leftist ideals, but Republican judges are not nearly as reliable on the conservative side.  Over time, a certain percentage drift to the left, so if a circuit court has seven Rs and five Ds, the partisan balance may be in favor of the Republicans, but in reality, the ideological balance may be in favor of the Democrats.

2) Circuits with Democratic or Republican majorities can issue contrarian decisions.  Most times, cases are not heard "en banc" – that is, by the entire circuit.  Most cases are heard by three-judge panels chosen theoretically at random.  So if a circuit has ten Ds and five Rs, it is possible for a three-judge panel to be composed of a majority of Rs.  Decisions of three-judge panels can be challenged to the entire circuit, but as I said, most cases aren't heard "en banc."

3) Many of you will ask, "Why can't Congress expand the number of vacancies on the circuit court and then fill them with conservatives?"  Well, the answer is, Congress can do that.  With a Republican House, Republican Senate, and Republican president, such a bill can be passed.  But it won't be.  The reality is that the balance of the circuit courts will not be changed for some time to come, but the good news is that a surprising number of the circuits are already conservative.

Ed Straker is the senior writer at

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