Minimal presence of N.C. judges on 4th Circuit raises concerns

By Guy Loranger
Published: September 29, 2008

[A version of this article originally appeared in North Carolina Lawyers Weekly, a sister publication of Virginia Lawyers Weekly.]

Despite boasting the largest population among the 4th Circuit’s five Mid-Atlantic states, North Carolina holds only one of the court’s 15 seats, occupied by Judge Allyson K. Duncan.

It appears that it will remain that way through at least 2009.

Even though he was nominated for a North Carolina seat more than a year ago, Judge Robert J. Conrad Jr. of Charlotte, N.C., a staunch conservative, appears unlikely to get a hearing in front of the Democratic-controlled Senate Judiciary Committee before this November’s elections.

One of the seats traditionally held by a North Carolina judge has been empty since Judge J. Dickson Phillips Jr. of Chapel Hill, N.C., took senior status in 1994. It is the longest-running vacancy in the federal appellate system.

N.C. Court of Appeals Judge James A. Wynn Jr. said the politics of former U.S. Sen. Jesse Helms might be to blame for the cobwebs collecting in Phillips’ seat.

President Bill Clinton twice tried to fill the seat with an African-American judge in the 1990s in an effort to diversify a bench that represented the highest African-American population of any of the federal appellate system’s 12 regional circuits.

Helms, reportedly in retaliation for Clinton’s refusing to nominate Terrence Boyle, a conservative judge who had been a Helms aide in the 1970s, blocked both nominees by refusing to turn in his “blue slip,” a privilege given to a judicial nominee’s home-state senators.

First, Helms, a Republican, blocked U.S. District Judge James A. Beaty Jr. of North Carolina’s Middle District. Then he blocked Wynn, despite Wynn’s distinguished career as a Naval officer and state appellate judge. Both judges had been nominated twice.
After being rejected a second time, Wynn asked to meet with Helms.

Although North Carolina at the time was the only state in the country without a federal appellate judge, and the 4th Circuit had several vacancies, Helms told Wynn that the court had enough judges to handle its caseload and neither needed nor could afford any more.

“I grew up in eastern North Carolina and went to segregated schools through high school,” Wynn said. “I learned there are certain things you don’t accept, but you come to understand that you personally can’t change. I came to understand that Sen. Helms was not someone I could change. So, I went on with my life.”

But the 4th Circuit still hasn’t moved on.

After taking office, President George W. Bush nominated Boyle again for a 4th Circuit seat. In retaliation for Helms’ blocking of Clinton’s nominees, then-Sen. John Edwards, a Democrat, prevented Boyle from getting a nomination hearing for four years.
Boyle, a federal judge in North Carolina’s Eastern District, finally did get his hearing before a Republican-controlled Senate Judiciary Committee in 2005. He was voted out of the committee by a 10-8 vote.

Before Boyle could receive a full vote on the Senate floor, however, the Democrats regained the Senate majority in the 2006 elections.

Bush eventually withdrew Boyle’s nomination and tabbed Conrad in July 2007.

To this day, Conrad, the chief judge for the U.S. District Court for the Western District of North Carolina, has not received a hearing before a Senate Judiciary Committee chaired by Sen. Patrick Leahy, D-Vt.

Carl W. Tobias, a professor at the University of Richmond School of Law who tracks the 4th Circuit, said that North Carolina’s lack of representation may have more to do with bad choices than bad blood from the Helms era.

The court has long been considered the most conservative circuit court in the country, issuing decisions in the 1990s that wiped out the citizen-suit provision of the Clean Water Act, stymied the U.S. Food and Drug Administration’s attempt to regulate nicotine and threw out the civil rights remedy of the Violence Against Women Act.

More recently, the court has supported the government’s position on the capture, detention and interrogation of detainees in the war against terror in cases such as Hamdi v. Rumsfield, Padilla v. Hanft and El-Masri v. United States.

In an attempt to preserve that conservative character, Bush has submitted nominations that are ripe for partisan battles, Tobias said.

While Conrad has gone a year without a hearing, it took less than three months for “consensus” choices such as Duncan (2003) and G. Steven Agee (2008) to sail through the confirmation process.

“In the 4th Circuit and in a few other places, Bush has taken a pretty hard line in the sense of wanting to pick people whom he thinks will be strict constructionists or more conservative ideologically,” Tobias said.

The Senate’s refusal to hold a hearing on Conrad’s nomination has fueled concern about the 4th Circuit’s “appearance of credibility,” according to Charlotte, N.C. attorney Doug Ey.

“It’s important to people to have somebody who’s familiar with the local culture, the local judges and all of that,” Tobias said. “The legal culture in Baltimore is different than the legal culture in South Carolina or Virginia, and I’m sure North Carolina‘s culture is different as well.”

Another concern is that there are so many other vacancies on the bench besides Phillips’ long-empty seat.

The 4th Circuit’s four open spots are the most of any circuit in the country.

According to a recent article in the ABA Journal, in 2006, the 4th Circuit tied the 11th Circuit for the fastest disposition time in the federal appellate system (an average 9.5 months per appeal). But it also held the fewest oral arguments and issued the fewest published opinions (only 192 of 2,741 cases, or 7 percent).

In Wynn’s view, the value of oral arguments should not be underestimated.

“[Oral arguments] can be tremendously important, especially if it is a complex case, such as a business case or some case that deals with a difficult legal issue or specialized area of the law,” said Wynn, who chairs the ABA’s Judicial Division. “It’s all about raising the understanding of the judge.”

The four vacant spots currently are being filled on a rotating basis by District Court judges from within the circuit and senior Circuit Court judges from around the country, according to 4th Circuit Clerk Patricia S. Connor. Former U.S. Supreme Court Justice Sandra Day O’Connor even sat on a panel in March.

Virginia Lawyers Weekly

Minimal presence of N.C. judges on 4th Circuit raises concerns

POST A COMMENT

VLW Verdicts & Settlements

GET THE VLW DAILY ALERT

STAY CONNECTED WITH VLW