I've noticed a new theme popping up in coverage of the judicial confirmation issue. The story goes that Republicans already dominate the court system in this country. Articles that I could find quickly to verify this include the LATimes and the CS Monitor (my Google search also turned up a Salon.com article that is subscription only). Nominees of Republican presidents outnumber Democratic appointees on 10 of 13 courts and could have a majority on all but the Ninth Circuit by the time 2008 rolls around. The clear implication is that filibusters of judicial nominees isn't really a problem, because Democrats are just trying to preserve a balanced judiciary.
Obviously measuring how conservative or liberal a court is based on the numbers like this is a simplification. It ignores factors like the background of judges (intellectual hotshot who is likely to be influential on the bench or simply politically well connected) or the Senate confirmation environment (controlled by the president's party or not). Defining a court as Republican or Democrat based on who has a numerical advantage is also misleading when the the numbers are close - a 7 to 6 numerical advantage on the Sixth Circuit will not suddenly make the court right-wing. But I'm willing to accept that studies do show some correlation between the party "affiliation"of a judge and how he votes.
My question is, so what? It only stands to reason that conservatives, or at least Republican nominees, should have a numerical advantage in the federal court system. Not because conservatives are necessarily right. It's simply that Republicans have won 7 of the last 10 presidential elections and as a result have gotten to make more appointments. This is democracy in action. Part of the prize in presidential elections is the right to nominate judges. Make it an issue in the next election. If the American people agree than they'll vote for your side.
The composition of the courts reflects electoral politics. The "correct" balance is not one where both sides of the political spectrum are represented equally. It's where the composition of courts reflects the electoral decisions of the American people.
(Actually, in my ideal world judges would not be controversial because everyone would know they were simply ruling based on the law, not personal policy preferences. But that's another discussion.)