WASHINGTON – One of the nation’s most ideologically conservative federal appellate courts could soon be making a left turn.
With a new Democratic president-elect and four of 15 judicial seats vacant, the 4th U.S. Circuit Court of Appeals may look quite different after Barack Obama’s inauguration on Jan. 20, according to scholars and officials.
“I think anytime you have four new people to a court that has 15, it’s likely to change the makeup and the views of the court,” said Carl Tobias, law professor at the University of Richmond. “A lot of people say it’s the most conservative of the appeals courts or at least was and it’s likely to become less conservative — but how much so, I don’t know.”
Vacancies can open as judges die or take senior status, a form of semi-retirement for judges serving 15 years or more. They are replaced by presidential nominees ratified by the Senate.
As it stands, the 4th Circuit, which covers Maryland, Virginia, West Virginia and the Carolinas, is split somewhat evenly, with six judges appointed by Republican presidents and five appointed by Democrats, according to those who study the court. Adding four judges to the court could easily shift that balance.
“(Obama) will certainly be nominating a very different kind of person,” said Arthur Hellman, an expert on the federal appellate courts. “In terms of criminal cases, it will probably be people who have more sympathy for criminal defendants’ rights and (who are) less oriented to public-safety prosecutorial concerns in the general matter.”
Confirming a nominee can be a long process. Once Obama identifies a nominee, he or she is interviewed by the U.S. Department of Justice and investigated by the American Bar Association and the FBI.
The nomination then goes to the Senate, which does its own investigation and conducts hearings before it votes on the choice.
President Bush repeatedly nominated conservative candidates, who were blocked by the Democratically controlled Senate. That’s meant long-standing vacancies.
One of the three seats reserved for Maryland, for example, has been empty since Judge Francis D. Murnaghan died in 2000. Another seat, held by Judge J. Dickson Phillips Jr. for North Carolina, has been empty since he took semi-retirement in 1994.
“The extended vacancy is the result of an administration that was bent on injecting politics into the judicial branch. This will change with an Obama presidency,” said Sen. Barbara Mikulski, D-Md., in an e-mail.
Bush has had difficulty appointing judges as compared to past presidents. Former President Bill Clinton appointed 15 judges during his last two years in office, while Bush named six during his last two years, Hellman said.
“It’s really baffling to me (that President Bush hasn’t filled the vacancies),” Hellman said. “It’s not just the 4th Circuit that he’s done that with, although the 4th Circuit has been the hardest hit with that kind of behavior.”
The 4th Circuit is arguably one of the most influential courts in the nation, especially in cases regarding terrorism.
Last year, the court was split 5 to 4 in upholding the U.S. District Court for the Eastern District of Virginia’s dismissal of El-Masri v. United States. Khalid El-Masri was an innocent German citizen mistakenly abducted by the CIA and tortured in a prison in Afghanistan.
“It’s actually very poor management,” Hellman said. “The 4th Circuit decides these very important issues of presidential power in fighting the war on terrorism and so you think (Bush) would’ve been especially alert to keeping the bench full, even if that meant abandoning a nominee who wasn’t going anywhere.”
Obama’s platform of bipartisanship, a Democrat-controlled Senate and an informal “honeymoon period” traditionally given to new presidents at the beginning of a president’s term may make it easier for judges to get appointed.
Bethesda resident Peter Keisler withdrew his nomination after Mikulski and former Sen. Paul Sarbanes, D-Md., made it known that they would block him because he was not a member of the Maryland Bar and did not work in the state. Another Bush nominee, Virginia lawyer Claude Allen, withdrew after he was arrested for an odd defrauding scam in which he returned goods he never purchased.
Later, The Baltimore Sun wrote that Bush’s current choice, Maryland U.S. Attorney Rod Rosenstein “seems primarily intended as a poke in the eye to Maryland’s two senators,” who publicly said Rosenstein lacked deep ties to the Maryland legal community and had never served as a judge.
“For any person to serve on the bench, I’m looking for a person that’s passionate about the Constitution, who understands the importance of being a federal judge, who has the experience and judicial temperament and adds to the balance of the court as far as geography, diversity, etc.,” said Sen. Ben Cardin, D-Md.
Having such a short-staffed court has been problematic because visiting judges from the district courts must fill in.
District judges have their own dockets and are not necessarily as familiar with circuit law and are not part of the lawmaking cohort that exists as the 4th Circuit, scholars said. The court also tends to be even more tempted to use procedural shortcuts, not giving oral argument and not writing opinions for publication.
“It’s really been a fiasco, from everybody’s perspective,” Hellman said. “It’s a very shorthanded court and it really doesn’t serve the litigants well.”
Fourth Circuit Judge Paul Neimeyer argued in a recent interview, however, that filling all 15 seats would actually hinder the court. To Neimeyer, 13 judges were the perfect number to handle the approximately 5,000 cases heard by the 4th Circuit every year.
“As it gets larger, it gets harder and harder,” said Neimeyer, who was appointed to the 4th Circuit in 1990 by the first President Bush. “So getting too many judges can be too harmful and getting too few judges can be harmful. It has to be like Goldilocks — just right.”
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