4th Circuit could be reshaped

BY FRANK GREEN
Media General News Service
Published: November 10, 2008

As president, Barack Obama and a new U.S. Senate could transform the Richmond-based 4th U.S. Circuit Court of Appeals, long one of the most conservative in the country.

President Bush failed to fill four vacancies on the 15-judge court, which decides cases on issues such as abortion, the death penalty and terrorism.

The Bush administration steered terrorism cases to the court, where it largely has been successful in protecting the president’s national-security powers, though not always.

Six of the court’s current judges were appointed by Republican presidents and five by Democrats.

Since few cases make it past the country’s 13 circuit courts to the U.S. Supreme Court, the 4th Circuit is, in large part, the highest court for the states it serves: Virginia, Maryland, West Virginia, North Carolina and South Carolina.

“Obama will, I’m sure, have quite the opportunity to reshape that court,“ said Ilya Shapiro, a senior fellow at the Cato Institute, a Washington think tank. And, he said, the new president might even move quickly given changes in the Senate.

The Senate confirms judges. Presidents nominate them, often after consulting with senators from the state involved.

The outcomes in three Senate races remain uncertain, but there will be at least 55 Democrats in the Senate, plus two independents who align with them.

As a result of Tuesday’s elections, South Carolina will have two Republican senators, Virginia, Maryland and West Virginia will have two Democrats each, and North Carolina’s two seats will be split between the parties.

Shapiro said only one of the 13 federal appeals courts now has a majority appointed by Democratic presidents.

“Obama will be able to . . . swing control of all but three circuits to Democratic appointees,“ Shapiro said.

But Carl Tobias, a professor at the University of Richmond School of Law, said much depends on whether Obama serves two terms and other developments. He also said the party of an appointing president does not telegraph whether he is liberal or conservative.

“It is just so unpredictable, because we know so little about what Obama plans to do,“ Tobias said. But, he said, “I think it’s important to have those vacancies filled soon.“

The 4th Circuit has the lowest percentage of oral arguments and published opinions of all the circuit courts. “I think it does exact a toll when you’re only working with 75 percent of your authorized judges,“ he said.

Shapiro and Tobias believe Obama’s nominees will be moderate to liberal, much like those appointed by President Bill Clinton.

Tobias said that traditionally the 15 seats on the court are divided between the five states that make up the circuit: Virginia and South Carolina each have four; Maryland, three; and West Virginia and North Carolina, two each.

Virginia, Maryland, North Carolina and South Carolina have one vacancy each.

The Constitution calls for the president to appoint the judges with the “advice and consent” of the Senate. A successful nominee first gets a Senate hearing and then must survive committee and floor votes.

There are four Bush nominees for the vacancies, but none has received a hearing, Tobias said. “I don’t think any of those four will be seriously considered. . . . I cannot imagine why the Democrats are going to want to confirm a Bush nominee now,“ he said.

Kimberly Hunter, press secretary for Sen. Jim Webb, D-Va., said, “We have no expectation that there will be any additional judicial confirmations prior to the 111th Congress convening in January.“

“We will be working closely with the White House, Senator Mark Warner, and the Virginia legal community to fill the 4th Circuit Court and other judicial vacancies with qualified, upstanding jurists,“ said Hunter.

Tobias said he believes Bush’s failure at times to consult with home-state senators contributed to the four seats not being filled.

Tobias said there has been only one appointment to the court since 2003, that of former Virginia Supreme Court Justice G. Steven Agee, last May.

He noted that Agee was on a list of potential nominees backed by both Virginia senators, Webb and Republican John W. Warner.

Frank Green is a staff writer at the Richmond Times-Dispatch.