The Maryland judge, Andre Davis, would serve on the Virginia-based 4th U.S. Circuit Court of Appeals if confirmed by the Senate. His confirmation would give the circuit six Democratic-appointed and six Republican-named judges, leaving three vacancies. The court has handled cases involving terrorism defendants or detainees.

Gerard Lynch would fill the only vacancy on the New York-centered 2nd Circuit, giving the court seven Democratic and six Republican judges. The court often presides over Wall Street-related financial cases.

“Judges Lynch and Davis are two jurists with exceptional records of integrity and fairness,” Obama said in a statement. “They will be voices of reason and evenhandedness on the Second and Fourth Circuits.”

There currently are 17 vacancies in federal appeals courts covering 12 geographically based circuits. They often provide the last word on a variety of issues affecting Americans.

Their decisions cover, among other matters, civil rights, searches and seizures, age and gender discrimination, religious liberty, capital punishment, abortion, gay rights, corporate wrongdoing, review of federal regulations and terrorism.

The Bush administration had the opportunity to tilt the courts to the right. Obama can now make them less conservative.

The 2nd Circuit covers Vermont and Connecticut as well as New York. The 4th has jurisdiction in West Virginia, Maryland and the Carolinas as well as Virginia.

Lynch was appointed to the federal bench in 2000 by President Bill Clinton.

He presided over several high profile cases including a sexual harassment claim by a former executive of NBA’s New York Knicks against Madison Square Garden; and the perjury case of a rap artist, Lil’ Kim.

He has served as a federal and New York prosecutor, chief counsel for the York Commission on Government Integrity and an associate counsel in the Iran-Contra independent counsel’s office.

Davis has been a judge for 22 years, and this is his second opportunity for an appellate seat. Clinton nominated him for the 4th Circuit in October 2000, but the Senate didn’t have time to vote before the Bush administration took office.

Named to the federal bench by Clinton in 1995, Davis has served as an appellate attorney in the Civil Rights Division at the Justice Department and a federal prosecutor in Maryland.

Judicial nominations have become partisan issues in the Senate, because federal judges have life terms and rule on so many politically explosive social issues.

On Wednesday, most Republicans boycotted the hearing for Obama’s first judicial nominee, allowing Democrats to lob softball questions at David Hamilton in his quest for a seat on a Midwest appeals court.

The Senate Judiciary Committee will not vote on the nomination for several weeks. But with Republicans complaining of inadequate preparation time, the hearing signaled a rocky beginning to Obama’s attempt to remake the federal judiciary.

Yesterday, I posted a quick comment on an ad released by proponents of proposition 8 – the California constitutional amendment that would undo same-sex marriage gains in the State.

Today, news reports warn that the opposition to proposition 8 is losing the money game, 27 million to 19 million.

Some of that money is being used to fund a television ad attacking California Supreme Court Justices for ignoring, “four million voters and impos[ing] same sex marriage on California.”

It’s an issue ad that sounds a lot like a negative campaign tactic. In 2010, the next gubernatorial election, two of the eight Justices of the California Supreme Court and 22 Justices of the Court of Appeal will face a re-election campaign.

That means that they are going to be worried about making decisions that garner exactly the kind of negative public attention as that surrounding same-sex marriage.

Judges are agents of a branch of government concerned solely with imposing the rule of law as fashioned by elected representatives. Even if the law says unpopular minorities deserve equal rights, the judge must uphold it.

Protests outside of courthouses shouldn’t matter in the face of the letter of the law. Negative television ads shouldn’t matter in the face of constitutional language that provides equal treatment for all citizens.

Proposition 8 is exactly the kind of remedy the American constitution envisions.

If you don’t like the law and the impartial arbiters who enforce it, then have it changed. But campaigning in a way that suggests that judges of the Supreme Court should have considered voter approval undercuts the purpose of the judicial branch. It also exposes a considerable weakness:

If judges must run for re-election, even if it is only once every twelve years, they will, at more than one time in their career, look to opinion polls, public perception and special interest lobbyists.  Just like our presidential candidates are doing right now.

Those kinds of election pressures made candidates who potentially support gay marriage, refuse to publicly endorse it. 

If we want judges to worry about the law, not the public misunderstanding of it, we need to give them the security of appointment without the pressure of elections. If they abuse their power, fail to fulfill their duties, then they should be reprimanded in exactly the same way as other appointed government officials.

Bush said he has appointed more than one-third of all sitting federal judges, and that “few issues are more hotly debated or have a more lasting impact on our country.”

With his historically low poll ratings, Bush isn’t exactly welcome at campaign rallies, appearing at the side of candidates. So indirect help like his speech here, and his fundraising efforts that landed the GOP $2.5 million over the last four days, are his strongest campaign tools. All of the fundraisers were held out of the view of the press and the public.

He called on the Democratic-run Senate, in the final days of his presidency, to vote on filling 34 vacancies in the federal circuit and district courts. Realistically, there is no chance of that happening if Democratic presidential candidate Barack Obama wins the White House, since his colleagues in the Senate would simply wait for him to be inaugurated and come up with his own list of nominees.

Bush criticized the Senate for the “ruthlessness that now characterizes the confirmation process.” He urged the Senate to take partisanship out of the process and end “tricks and gimmicks” such as demanding that all election-year nominees be consensus choices.

Democrats say they have confirmed a total of 326 of Bush’s judicial nominees, and that just 26 are pending now. They note that at the end of the Clinton administration with Republicans in charge of the Senate, there were 63 circuit and district court vacancies, far higher than the vacancy rate now.

“As the stock market continues its precipitous drop, for some strange reason he feels the need to give one more speech criticizing the Senate for not confirming judges?” said Jim Manley, spokesman for Senate Majority Leader Harry Reid, D-Nev. “Yeah – that is just what the country needs right now. The fact is, Democrats have been much fairer to these nominees than Republicans ever were.”

Bush spoke before about 700 conservative legal scholars, judges, students and activists. Speaking in their language, and to applause and even some `amens,’ Bush said the definition of a good judge is one who does not use the court to “invent laws or dictate social policy” and who believes that the Constitution “means what it says” and “is an enduring document.” This code for the conservative approach to the role of a judge compares with the more liberal view that judges must have latitude to view the Constitution as a “living document.”

The issue of a president who would appoint judges who strictly interpret the Constitution is one of the more energizing topics for that key GOP voting block.

Bush did not mention presidential rivals Obama and John McCain, the Republican nominee, but he singled out the two Supreme Court justices he nominated – John Roberts and Samuel Alito – as “outstanding judges.” Obama voted against both of them. Bush touted the changes in narrow Supreme Court decisions since Roberts and Alito joined the court, citing, for example, recent 5-4 decisions that upheld a ban on a late-term abortion procedure and citizens’ Second Amendment rights.

“Our founders gave the judicial branch enormous power,” Bush said. “It is the only branch of government whose officers are unelected. That means judges on the federal bench must exercise their power prudently – cautiously – you might even say, conservatively. And that means that the selection and confirmation of good judges should be a high priority for every American.”

He spoke on the first Monday of October, which is dictated by law to be the beginning of the Supreme Court’s new term. And his appearance came in Ohio, a crucial battleground state. No Republican has ever won the presidency without winning Ohio.

Ohio voted for Bush, and now almost every Electoral College calculation concludes McCain must hold it to beat Obama. And yet, polls show McCain virtually tied or trailing there, along with several other important Bush states.