The president's ability to radicalize the courts with right wing ideologues was hampered in the last two years, but the damage had already been done. Let's not even talk about Justices Alito and Roberts. The Senate confirmed more than 300 of President Bush's lower court nominees. A 2006 study found that Bush's judges "are the most conservative on record when it comes to civil rights and liberties."

That should be good enough for Calabresi and his fellow Federalist Society activists. In fact, given that Republican presidents have selected judges for 20 of the last 28 years, Calabresi and his Federalist chums should be downright giddy. Not so. Calabresi sees a dire future in which the courts become more balanced. Starting with the Court of Appeals for the District of Columbia:

If Barack Obama wins the presidency, he will almost certainly fill ... two vacant seats, the seats of two older Clinton appointees who will retire, and most likely the seats of four older Reagan and George H.W. Bush appointees who may retire as well. The net result is that the legal left will once again have a majority on the nation's most important regulatory court of appeals.

So it will take the retirement of six sitting judges during the Obama presidency for the majority of the circuit's judges to change from Republican-appointed to Democrat-appointed. Unfortunately for the nation, that won't happen overnight if it happens at all. Calabresi can rest easy for now.

Calabresi thinks "the balance will shift" in the "First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal." Let's hope so, but again, that won't happen quickly. It's not as if Republican-appointed judges are eager to retire when a Democrat is in office. Most conservative judges will hang on to their power as long as they can.

Calabresi worries that Obama will nominate judges who have empathy for individuals. The current crop of conservative judges have empathy for large corporations and little regard for the employees who serve them. Calabresi seems to fear judges who (in Obama's words) "understand what it's like to be poor, or African-American, or gay, or disabled, or old." Shouldn't concern for the most easily victimized members of society be a job qualification for federal judges?

As Federalist Society members like to do, Calabresi distorts the positions advocated by the left. Liberals do not want to see "criminals [win] in cases against the police." We want the police to respect the Constitution and to obey the law. Liberals don't believe plaintiffs should "usually win" against defendants (much federal litigation involves one corporation suing another over business disputes that matter to no one else), but we think plaintiffs should receive a fair trial and an appeal before judges who are not hostile to the interests of employees and consumers. We don't think citizens should "usually win" in lawsuits against the government, but we don't believe courts should construct artificial barriers against successful litigation when the government abuses individuals.

Mostly, we are tired of seeing the decks stacked with judges who presume that criminal defendants are guilty because federal prosecutors say they are, who abdicate their responsibility to act as a check against the abuse of executive branch power, who excuse blatant constitutional violations by police officers, who believe the government should generally be immune from responsibility for its misconduct, and who want to keep juries from hearing lawsuits because they feel a need to protect businesses from the "sympathy" that jurors might feel for abused employees and injured consumers.

Aside from the preposterous argument that Obama wants to see judges proclaim "a federal constitutional right to welfare" and "the mass freeing of criminal defendants" (policy stances notably absent from Obama's stump speeches), Calabresi's argument comes down to this: governmental regulation is bad and judges who uphold governmental regulations are bad. We've seen where deregulation of the financial sector has left the nation. This isn't the time to appoint judges who stand in the way of regulatory agencies.

Nor is this the time to worry about "ruinous shareholder suits against corporate officers and directors." Officers of large financial institutions have done a splendid job of ruining their business without the help of the courts (often pocketing billions on the way out the door). If the directors who abdicate their responsibility to keep an eye on those officers were more readily subject to liability when they fail to put the interests of shareholders first, they would have a greater incentive to behave responsibly. That would not be a bad outcome.

Calabresi's hand-wringing notwithstanding, it will take years even to begin to restore philosophical balance to the federal judiciary. The Federalists had their way for too long. Now it's time to install some judges who care about the Constitution and who think individual rights are at least as important as corporate interests.