Taking the 4th: Obama can reshape appeals court

Taking the 4th: Obama can reshape appeals court
Obama can reshape appeals court by filling numerous vacancies

By Steve Lash and Alan Cooper
Published: November 17, 2008

With President-elect Barack Obama poised to take office Jan. 20 – and four vacancies on the 15-member 4th U.S. Circuit Court of Appeals – court watchers predict the completion of a seismic shift on the Richmond-based appellate panel.

The court long was regarded as the most conservative of the 13 appellate courts, but that label hardly applies now. In fact, the court was evenly split between Republican and Democratic appointees until earlier this year, when the Senate confirmed President George W. Bush’s appointment of Virginia Supreme Court Justice G. Steven Agee as the 11th judge.

Still, the more liberal of those court watchers relish a change in the philosophy of the court.

“If I were handling the Obama judicial appointments, I would make the 4th Circuit a particular target,” said Arthur F. Fergenson, co-chair of DLA Piper’s appellate litigation group in Mount Washington, Md.

“To turn the 4th Circuit from conservative to liberal, which is quite possible to do through the existing vacancies and vacancies over time, would be a symbolic victory for an Obama presidency and for the liberal interest groups that want changes in the judiciary, in a way that turning the [liberal] 9th Circuit to a conservative circuit … would be a victory for a conservative president,” Fergenson said. “It would provide a narrative for what Obama can do to the judiciary that would be very appealing for his close and passionate followers.”

Difficulty in filling 4th Circuit seats goes back to the impasse between President Bill Clinton and Republican North Carolina Sen. Jesse Helms. Clinton insisted on appointing a black judge to a court that had none, despite the sizable black population of the circuit, while Helms was just as adamant about having his candidates appointed.

As a result of that legacy and the recalcitrance of the Democrat-controlled Senate Judiciary Committee, the most populous state in the circuit has just one judge.

Bush has actually appointed four judges to the circuit, the same number as Clinton, although the appointment of Judge Roger L. Gregory from Virginia started with his recess appointment by Clinton when Republicans controlled the judiciary committee.

Gregory took a gamble in accepting the appointment, and Bush chose not to spend political capital replacing the only black judge in the circuit. He subsequently appointed another black judge, Allyson K. Duncan, now the only judge from North Carolina.

One of the open seats has been vacant since the death of Judge Francis D. Murnaghan Jr. of Maryland on Aug. 31, 2000 – a period that pre-dates President Bush’s presidency by almost five months. An even earlier vacancy was created when Judge J. Dickson Phillips Jr. of North Carolina took senior status more than 14 years ago.

The other two vacancies are of more recent vintage, created when judges William W. Wilkins from North Carolina and H. Emory Widener Jr. from Virginia took senior status within weeks of each other in July 2007. Widener died the following September.

Wilkins and Widener were two of the judges who earned the 4th Circuit its conservative reputation. A third conservative judge regarded as one of the court’s intellectual leaders, J. Michael Luttig from Virginia, resigned in 2006, but that seat has been filled.

A source of potential conflict is which state will get the four vacancies. Virginia and South Carolina have three seats, Maryland and West Virginia two and North Carolina only the single seat. Historically, population has been a major consideration in deciding the number of seats per state, but with Virginia and Maryland each expecting to get a seat, that would leave only two additional seats for a total of three for North Carolina.

“The continued vacancies, including the vacancy for Maryland, which has continued throughout the entire Bush presidency, is one of the great failures of the Bush presidency in its attempt to place people in the judiciary,” Fergenson said.

The nomination of Richmond attorney E. Duncan Getchell Jr. provides an example of what even some Republicans view as the ham-handedness of Bush in judicial appointments. Getchell withdrew his name after strong opposition from his home-state senators, John Warner, R-Va., and James Webb, D-Va. Getchell’s name was not on a list of five potential nominees the senators had submitted to Bush, in a spirit of bipartisanship, before the nomination.

With the replacement of the retiring Warner by Democrat Mark Warner, three of the five states – Maryland, Virginia and West Virginia – will have two Democratic senators. North Carolina will have one Republican and one Democratic senator, and South Carolina will have two GOP senators on Jan. 20.

Pending Bush nominees – U.S. Attorney Rod J. Rosenstein from Maryland; Chief Judge Robert J. Conrad Jr. of the U.S. District Court for Western North Carolina; Judge Glen E. Conrad of the U.S. District Court for Western Virginia; and attorney Steve A. Matthews, a partner at Haynsworth Sinkler Boyd P.A. in Columbia, S.C. – have little chance of quick renomination by Obama.
Glen Conrad was on the list of candidates who had the backing of Warner and Webb, but it wasn’t clear last week whether Warner and Webb will continue to back attorneys from that list.

Warner’s spokesman, Kevin Hall, said Warner was taking a post-election family vacation. Webb’s press secretary, Kimberly Hunter said, in an e-mail response, “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.”

University of Richmond law school professor Carl W. Tobias, who has written extensively on federal judicial selection, said Bush’s failure in getting his nominees confirmed can be attributed in large part to absence of any significant consultation with senators and gaining a consensus regarding which nominees would pass Senate muster. This failure to select “consensus nominees” doomed his selections for the 4th Circuit, Tobias said.

The professor said he expects Obama, himself a U.S. senator from Illinois, to seek greater input from senators, including those from Maryland – Benjamin Cardin and Barbara Mikulski – who are fellow Democrats.

Cardin and Mikulski agreed with Tobias, saying they look forward to working with their party’s new standard-bearer.

“Everyone is anxious to see these vacancies filled,” Cardin said.

Cardin said he expects Obama to listen to his suggestions regarding who should be named to the 4th Circuit, attentiveness the senator said was lacking from Bush.

The senator said he will encourage Obama to seek ethnic and gender diversity on the court as well as ideological balance and jurists who understand the importance of individual rights.

In a prepared statement, Mikulski said she also expects a fair hearing on her suggestions regarding potential 4th Circuit nominees.

“President-elect Obama, a trained lawyer and once a professor of constitutional law, will respect the sober task of putting forth a candidate for a lifetime appointment,” Mikulski said. “I look forward to working with him to fill the seat once held by Judge Murnaghan with another experienced, respected candidate who has strong ties to Maryland and its legal community.”

Tobias, the law professor, said it is unclear just whom Obama might have in mind for the 4th Circuit or any other federal court appointment. During his presidential campaign, Obama did not speak much about the judiciary, consumed as the nation was with the economic crisis, Tobias said.

“[But] it’s fair to say that the court will become less conservative,” he added.

Tobias suggested three places the next president might look for nominees.

First, the federal district courts in the four states of the 4th Circuit are obvious sources for appellate court nominees, Tobias said.

In particular, Obama might be interested in elevating district court appointees of former President Bill Clinton, the most recent Democratic chief executive and whose judicial philosophy might be akin to Obama’s.

State supreme courts are another possible source for federal appellate appointments, Tobias said.

A third option for Obama is to follow the Ronald Reagan model and nominate law professors to the federal circuit court bench, Tobias said.

For example, Richard A. Posner and Frank H. Easterbrook were teaching at the University of Chicago when then-President Reagan appointed them to the 7th U.S. Circuit Court of Appeals, in 1981 and 1985, respectively. Antonin Scalia was also a professor at that school when Reagan appointed him to the U.S. Circuit Court of Appeals for the District of Columbia in 1982. And Robert H. Bork was teaching at Yale when Reagan named him to the D.C. Circuit in 1982.

“I would hope the president moves expeditiously to fill all the vacancies,” Tobias said. Being short-staffed “puts a lot of pressure on the judges,” added.

Judge Diana G. Motz of the 4th Circuit said she does not feel the pressure, but added her calm might be because, during her more than 14 years on the bench, the appellate panel has never been without a vacancy.

“I think it’s very hard to tell” what effect filling the empty seats would have on the court, she said. “I have not seen it any other way.”

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