The Ottumwa Courier

AP National

February 17, 2014

Fight over gay marriage moving to federal courts

(Continued)

Still, one consequence of Obama's two elections has been a change in the composition of the courts. Just over 60 percent of appellate judges were Republican appointees when Obama took office in January 2009, according to Brookings Institution scholar Russell Wheeler. Just over five years later, Democratic appointees hold more than half the seats on appeals courts — a transformation magnified by majority Democrats who changed Senate rules last year to make it harder for the minority party to block the president's nominees.

Legal experts on the left and right agree that who fills court seats matters. "To be fair, academic studies show that political party affiliation doesn't affect the run-of-the-mill cases, but it does affect the cases you're likely to write about," said Curt Levey, who heads the conservative Committee for Justice.

Davidson, Lambda Legal's top lawyer, said, "People frequently don't appreciate the extent to which the president influences the composition of the courts. It is a remarkable thing about how elections have impact and this is one of the very dramatic ways you see it. There is a focus on the Supreme Court, but not on the lower courts."

Five federal district judges have issued pro-gay marriage rulings since the Supreme Court's decision in Windsor v. U.S. in June that struck down part of the federal anti-gay marriage law. Three of those judges are Obama appointees, one was named by Democratic President Bill Clinton and the other by Republican President George H.W. Bush.

Nancy Leong, a University of Denver law professor who is closely following the gay marriage issue at the 10th circuit, said the lineup of judges who have ruled so far conforms to general expectations.

"You don't want to presume that just because someone was nominated by one president they'd vote a particular way, but I think in the aggregate, Republican appointees are more likely to rule against same-sex marriage," Leong said.

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