Obama begins makeover of nation’s most conservative appeals court, venue for many terror cases

Obama begins to overhaul key US appeals court

RICHMOND, Va. — President Barack Obama has begun reshaping the nation’s most conservative federal appeals court, one that has handled many high-profile terrorism and detainee cases and generally supported the anti-terrorism initiatives of former President George W. Bush.

Five of the nation’s 20 open circuit judgeships belong to the Richmond, Va.-based 4th U.S. Circuit Court of Appeals. The vacancies — fully a third of the court’s 15 judgeships — make the 4th Circuit more ripe than any other federal appeals panel for a fundamental shift in ideology, and greatly increase the odds that the court will undo some of its recent rulings.

Obama started his makeover of the court with the nominations of U.S. District Judge Andre Davis of Maryland, whose nomination to the circuit bench by President Bill Clinton died in the Senate, and Virginia Supreme Court Justice Barbara Keenan. Should they win confirmation, Democratic appointees will outnumber Republicans 7-5 on the 4th Circuit, with three more vacancies.

Nationally, there are 75 U.S. District Court positions open and 20 vacancies on the federal appeals courts. Obama has made nominations for seven of those appeals court openings, including for two vacancies on the Philadelphia-based 3rd Circuit, also evenly split for the moment between Democratic and Republican appointees.

“Down the road, if indeed what we think will happen happens, it may end up being more than one or two votes in the more liberal vein,” said Barbara A. Perry, a government professor at Sweet Briar College in Sweet Briar, Va., who has written six books about the U.S. Supreme Court.

Many detainee and terrorism cases come to the 4th, which handles federal appeals in Virginia, West Virginia, Maryland, North Carolina and South Carolina, because national security facilities are concentrated in northern Virginia and because federal prosecutors there have had success getting jury convictions in such trials.

Among the court’s high-profile cases was that of Yaser Esam Hamdi, an American-born man captured during the fighting in Afghanistan and held in a military jail. In siding with the Bush administration, the 4th Circuit ruled the government has wide latitude to detain people caught fighting against the U.S. on foreign soil during wartime.

The court also has been tough in death-row cases and has backed abortion restrictions. The 4th has had the lowest capital punishment reversal rate of all the federal circuits and has upheld laws requiring parental consent for minors’ abortions and banning a late-term abortion procedure.

But as more conservative jurists have departed, the court has become more ideologically balanced. The most recent loss was Judge Karen Williams, a 1992 appointee of President George H.W. Bush who stepped down in July after she was diagnosed with early onset Alzheimer’s disease.

Just two weeks earlier, Williams had voted with the majority in a 6-5 decision upholding Virginia’s law banning a procedure that abortion opponents call “partial-birth abortion.”

Occasionally, the court’s conservatism has pleased the American Civil Liberties Union.

“While we’ve had some setbacks, our record on free speech and religious liberty cases before the 4th Circuit is actually pretty good,” said Kent Willis, executive director of the Virginia ACLU. “The court’s rulings on other important ACLU issues, like gender equality and the rights of defendants in criminal trials, however, is very disappointing.”

For example, the court in 1999 ruled that suspects in federal prosecutions do not necessarily have to be informed of their rights when they are arrested. That ruling, undermining the Supreme Court’s landmark 1966 Miranda decision, was later reversed by the high court.

Last year, the 4th Circuit also upheld a Virginia law that inmates do not have the same rights as other citizens to demand public records under the state’s Freedom of Information Act.

It’s impossible to say whether a majority of Democratic appointees would rule differently in any specific case. But Perry, the professor, said research suggests that party affiliation can’t be overlooked. Studies have shown that about 80 percent of decisions made by a Supreme Court justice are consistent with the views of the president who appointed him or her, she said.

“I’m not aware of any similar study for the circuits, but I wouldn’t be surprised if it’s about the same,” Perry said. “Most presidents probably get what they hope for.”

It helps if those presidents have a friendly Senate to confirm the appointments, which has not always been the case. That’s how the 4th Circuit ended up with a third of its 15 authorized judgeships vacant — more openings than any other circuit in the country. Several appointees dating back to the Clinton administration have been blocked, and four of the vacancies have been labeled “judicial emergencies” by the federal judiciary.

Bush had to withdraw two nominations when it became clear a new Democratic majority in the Senate would not go along. He finally managed to fill one slot last year as Steve Agee, a former Republican legislator and Virginia Supreme Court justice, received bipartisan support and the blessing of Sen. Jim Webb, D-Va.

With Democrats in control of the Senate and its Judiciary Committee, filling the rest of the vacancies should be easier for Obama. That would be a relief for the 4th Circuit’s sitting judges, who rely on help from visiting or semiretired judges to handle their caseload.

“As long as the Democrats hold the majority they have, it’s just a matter of time,” said Colby May, senior counsel for the conservative National Center for Law and Justice, “and 3½ years is sufficient time.”