Supreme Court reporter Neil Lewis again displayed a stark double standard while speculating about what kind of judges President Obama would appoint to federal appeals courts, in Wednesday's "Obama's CourtNominees Are Focus of Speculation." The text box read: "A watch has begun for signs of an ideological shift on the bench."
Lewis avoided using the word "liberal," although that's clearly what is implied by "an ideological shift" from the Bush administration. Apparently the original online headline (the one at the very top of the screen, which differs from the current text in the story itself) was more explicit: "Experts Watch for Signs Obama Will Move Appeals Court to the Left."
In contrast, the Times has never hesitated to talk about potential shifts to the right on the bench, as Lewis himself did in an amazingly slanted May 2008 story hypothesizing about the potential Supreme Court nominees of a future President Obama or President McCain. Lewis used the "conservative" label 18 times in unflattering fashion (Lewis argued that John McCain would be forced to pay "fealty" to the "conservative faithful" by appointing staunch conservative justices), but didn't once say Obama's nominees might be liberal, only that they would promote an "expansive, progressive view of the Constitution."
In his latest story, Lewis again portrayed conservatives in negative fashion: They want to "roll back affirmative action" and are "restrictive of abortion rights" and "less accommodating to criminal defendants." A conservative would turn around those same points and say that they favor a color-blind society, want to protect the rights of the unborn, and favor tough anti-crime measures.
President Obama will soon begin naming a small stream of nominees to the federal appeals courts, administration officials said, a step that will provide the first signs of how much he intends to impose any ideological stamp on the nation's judiciary.
The earliest setting for that question to be played out is likely to be the United States Court of Appeals for the Fourth Circuit, based in Richmond, which appears on the verge of stark change. Retirements on the 15-member court have left it divided with a slim 6-to-5 majority of Republican-appointed judges. That means Mr. Obama has four vacancies to fill and the potential to drastically reshape the court, which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina.
In recent years, the Fourth Circuit had become the most assertively conservative court in the nation. Its judges have taken the lead in trying to reduce federal power in several areas, even once trying to lead the way in undoing the Miranda rule that criminal suspects must be apprised of their rights before they answer questions. The court's conservative majority also tried to roll back affirmative action policies and was reliably supportive of Bush administration efforts to widen presidential authority in detaining terrorism suspects without trial or charges without Congressional input.
Shaping the appeals courts, the level just below the Supreme Court, was at the heart of the strategy first put in place by conservatives during the Reagan presidency. They saw to it that President Ronald Reagan put at least one forceful and articulate conservative, usually an academic, on each of the circuit courts.
At least so far, the candidates being considered by the Obama White House for early nomination do not appear to have especially ideological profiles.
Arthur Hellman, a professor at the University of Pittsburgh law school who is an authority on the circuit courts, said reliable studies regularly demonstrated that the Republican-appointed judges had moved the nation's courts in a more conservative direction in several areas.
They tend to be more restrictive of abortion rights, less accommodating to criminal defendants and sharply skeptical of expanding federal authority at the expense of the states.