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Federal appeals courts increasingly the final stop in legal battles

WASHINGTON—Gay couples can't adopt children in Florida because a federal appeals court says the U.S. Supreme Court went too far in a 2003 gay rights ruling.

In California, one court says the Constitution contains no protection of an individual right to bear arms, but another in New Orleans says it does.

The appeals court in New York says it's OK to tell candidates for public office how much they can spend in their campaigns, despite a 1976 Supreme Court ruling that appeared to outlaw those kinds of limits.

That's the power wielded by the nation's 13 federal circuit courts of appeal, and it's a potent reminder of why the Senate spent the last two weeks courting procedural Armageddon over seven nominees to the bench. Many political observers and interest groups have cast the fight over Democratic threats to block some of President Bush's appeals court nominees as a prelude to the expected struggle over how to fill the next Supreme Court vacancy.

But a look at the rising importance of the appeals courts shows how much is at stake for both sides in the confirmation battles for such nominees as Priscilla Owen, William Pryor and Janice Rogers Brown. Appeals courts are often the last stop for the vast majority of cases involving everything from abortion and affirmative action to election law and environmental regulations.

The Supreme Court under Chief Justice William H. Rehnquist has been intervening in only about 80 cases each year, down from about 150 a year two decades ago, leaving tens of thousands to be decided by appeals courts that are increasingly shaping the nation's laws.

"The appeals courts are critical decision-making bodies on a range of issues," said Thomas Mann, a senior fellow at the Brookings Institution. "As the Supreme Court takes fewer and fewer cases, the appeals courts are more frequently having final say. Both sides know this, so it forms the backdrop for the entire fight."

Also in the background, experts say, is the overwhelming Republican dominance of the appeals courts, thanks to five Republican presidencies over the past three decades versus two Democratic ones. Republican-appointed judges now hold majorities on 10 of the 13 appeals courts, and the pace of appointments is accelerating as new seats are created and other judges retire. In five years in office, for example, President Bush has managed to appoint a majority of the judges who now sit on the 8th Circuit Court of Appeals in St. Louis.

"I think a number of Republican political figures have made it a priority over the past few decades to change the ideological tendency of the federal courts, and that's evident in a number of ways," said University of Chicago law professor Cass Sunstein. "Democrats have become concerned about this in recent years, so they're pushing back in the only way they can. That's what's going on."

Sunstein said that while most judges follow the law rather than making it, it's also true that Republican and Democratic appointees to the bench approach some of the most potent social issues with distinct differences.

In a Virginia Law Review article he authored with two other law professors, Sunstein says a study of judges' voting patterns on issues such as affirmative action, abortion, discrimination, property rights and capital punishment shows that the party of the president who appointed the judge correlates strongly with the decision.

"Democratic-appointed judges were more sympathetic to affirmative action, more likely to uphold environmental regulations, more willing to set aside death sentences," Sunstein said. "Republican-appointed judges tended to come out on the opposite side."

Sunstein said partisans who care about those issues have learned that appeals courts are where they can have their most dramatic impact. And while the Supreme Court remains a focus, it's not everything.

"Lower courts are important in and of themselves," he said.

Even beyond the hot-button social issues, the effect these courts have on Americans' lives is formidable, said University of Pennsylvania law professor Nathaniel Persily.

"They're deciding the power of administrative agencies to enforce regulations, how strictly or loosely laws are interpreted and who can or cannot get access to courts to pursue," Persily said.

Of critical importance is the federal appeals court for the District of Columbia, which handles cases that arise from challenges to congressional acts or administrative procedures. Litigation involving the Americans with Disabilities Act, work safety and scores of other federal regulations goes through this court and often ends there without ever getting a Supreme Court review.

"They're in the best position to rein in or expand the power of agencies to interpret and enforce federal statutes dealing with health, education, environment, labor relations, civil rights, you name it," Persily said. "These are fundamental questions over how much government intrusion into the economic life of the country will be allowed by courts."

Other circuits issue critical opinions as well and often do so in defiance of a Supreme Court that doesn't act to stop them.

The 11th Circuit in Atlanta last year upheld a Florida law that prohibits gay couples from adopting children, saying that the Supreme Court's 2003 decision in a case about sodomy laws went overboard in establishing rights to sexual privacy.

"Nowhere," wrote Judge Stanley F. Birch Jr. for the three-judge panel that heard the challenge to the Florida law, "did the court characterize this right as `fundamental.' Nor did the court locate this right directly in the Constitution."

Birch said he was "particularly hesitant to infer a new fundamental liberty interest from an opinion whose language and reasoning are inconsistent with standard fundamental-rights analysis."

It was an opinion that seemed to beg for high-court review, but the justices refused to get involved earlier this year. So Birch's opinion is now law in the three states that make up the 11th Circuit—Alabama, Florida and Georgia.

In general, says Sunstein, it's "not a terrible thing for appeals courts to decide many issues." Most of their work, in fact, is applying well-established points of law to a particular conflict.

But "the complexity and amount of federal law is a lot higher than it was 50 years ago," Sunstein said. "And the federal bureaucracy has increased, raising new questions about the role of government and the relationships between different parts of government. Meanwhile, the high court is taking fewer cases and offering less guidance about these things."

And that's leading to different rights for citizens in different parts of the country.

"That's what the system is supposed to try to avoid," Sunstein said.

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(c) 2005, Knight Ridder/Tribune Information Services.

GRAPHIC (from KRT Graphics, 202-383-6064): 20050526 JUDGES APPELLATE

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