Now, make no mistake: the right does want legislating from the bench when it suits their purposes. What the right doesn't like is when case law goes against them. What they still want, for example, is for the U.S. Supreme Court to rule on cases like a woman's right to choose. That's legislating from the bench, and, in this case, it relieves right wing state legislators from having to take the heat from voters in their own states, most of whom overwhelmingly approve of the right to choose. But, if the Supreme Court rules on the issue, the right can point to the Supreme Court. If the right wins, their politicians take the credit; if they lose, they can blame the big, bad court. It's a no-lose strategy for them, and a way to stir up resentment (and generate contributions) among the faithful.

But there's a huge--absolutely huge--silver lining for liberals and progressives in all of this.

For a play-by-play account of what lies ahead, take a look at the real battle for the federal judiciary, as Eric R. Haren so expertly points out in his Commentary: The Real Battle for the Federal Judiciary:

After President Barack Obama wins confirmation of his first Supreme Court nominee, the Court will still lean conservative. And it will still decide only a handful of cases each year. The lower courts, in contrast, will have the final word in more than 99 percent of federal cases. These courts are up for grabs, and Obama's impact on them could be sweeping. Indeed, Obama may be able to completely reshape a conservative-dominated judiciary to one largely controlled by Democratic appointees -- even in a single term.

... In Obama's first term, 50 appellate judges may assume senior status. Thirty-five of those were appointed by Republican presidents. Beginning with the 61 current Democratic appointees and adding the 18 current vacancies and the 35 potential vacancies produced by Republican-appointed judges assuming senior status, Democratic appointees may occupy 114 of the 167 appellate judgeships (not counting the specialized U.S. Court of Appeals for the Federal Circuit) after Obama's first term. That number could increase to 131 during a potential second Obama term.

The impact on individual courts would be striking. For example, Democratic appointees might control 11 seats on the 17-judge 5th Circuit. That staunchly conservative court now only has four Democratic appointees. This pattern is consistent across nearly every circuit: Democratic appointees could have majorities on the 1st Circuit (5-1), 2nd Circuit (9-4), 3rd Circuit (9-5), 4th Circuit (12-3), 6th Circuit (9-7), 7th Circuit (8-3), 9th Circuit (21-8), 10th Circuit (8-4), 11th Circuit (10-2) and D.C. Circuit (8-3) after only four years under Obama. The only exception -- the 8th Circuit -- might topple in a second Obama term.

Democratic appointees thus might form majorities -- in many cases, overwhelming majorities -- on every regional federal appellate court, especially if Obama serves two terms. A swing of this magnitude is likely to produce a judiciary that is substantially less conservative, even if the party of the nominating president is not a perfect predictor. It would be a serious change from where we stand today. (for his complete report, click here.)

For all of the hoopla surrounding the Supreme Court, the appellate courts are where the action is, because so few cases make it to the Supreme Court. As the article points out, 99 percent of federal cases are decided right at the appellate level, and that's that. Case law.

The appellate courts are where Barack Obama will have one of his biggest and most lasting legacies. Expect big fights from the right wing and their corporate interests in the upcoming months, as they try to demonize nominees as "unAmerican," "socialist," and "judges who legislate from the bench." Here's where liberals must really stand together because the legacies of the appellate judges--the effects their rulings have on everyday Americans--will last far longer than the current Obama Administration.

Okay, so if we have a silver lining, where's the cloud? Well, for a truly chilling account of what the corporate right is trying to do to blunt efforts at justice, take a look at Law.com's recent article on the Iqbal case. They're trying to prevent cases from ever making it to trial court in the first place, let alone the appeals courts. This ruling threatens the very heart of judicial remedy in the United States. Fortunately, Congress has scheduled October hearings on the ruling's implications, changes in Federal Rules are afoot, and many prominent attorneys are weighing in on the side of justice--even some who would ordinarily be on a corporation's side of a case.

Stay tuned.