Barack Obama carried Virginia and North Carolina in the presidential election—and he may be about to win the federal appellate circuit that covers those states as well.
With four vacancies on the 15-judge U.S. Court of Appeals for the 4th Circuit, Obama has the chance to almost instantly move the number of Democratic appointees on the court from five to nine. And in doing so he may transform a court known as one of the most conservative in the country—one that hasn’t had a majority appointed by Democratic presidents in more than 25 years. “This could be a very different 4th Circuit,” says Carter Phillips, managing partner of Sidley Austin’s office in D.C. and a veteran appellate advocate.
Appellate lawyers say the circuit, which covers Virginia, Maryland, West Virginia, North Carolina, and South Carolina, isn’t likely to become the 9th Circuit of the East. The pool of potential judges isn’t all that liberal (at least by 9th Circuit standards), nor are most of the home-state senators who might advance particular candidates for the court. “Anyone who thinks that this will become a liberal court doesn’t understand the 4th Circuit,” says Jack Young, counsel to Sandler, Reiff & Young who was a lead recount lawyer for Al Gore in Florida in 2000.
Still, the potential for change has conservatives expressing concern. “There’s a reason why people worry about the courts when they vote for president. When President-elect Obama fills those seats, as he surely will, the court at its basic level will have a different balance,” says Notre Dame law professor William Kelley, former deputy counsel to President George W. Bush. “There’s no question about it.” At a Federalist Society convention last month, Kelley, who worked on court nominations for the current Bush administration, said he feared the “trend line” for Obama’s judicial picks will be “more to the left than prudent.”
Names have already begun to surface among appellate lawyers for the slots. Among them are two veterans of the U.S. Solicitor General’s Office: Patricia Millett, a partner at Akin Gump Strauss Hauer & Feld, and David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel.
The 4th Circuit, in spite of the ideological divisions, is known for its collegiality. Reagan-appointee Judge J. Harvie Wilkinson III and Clinton-appointed Judge M. Blane Michael regularly jog together at a Richmond park when the court holds its monthly oral arguments session. Judges come down off the bench to shake hands with advocates after arguments. And appellate lawyers routinely call it a “pleasurable” atmosphere in which to argue.
And the rock-solid conservative majority has been ebbing slowly over the last few years. In 2006, Republican Supreme Court hopeful Judge J. Michael Luttig, considered one of the conservative leaders on the court, resigned to become general counsel at Boeing. The other positions have opened as older judges have retired or have taken senior status (one of the open slots dates back 14 years). The latest Bush appointee, Judge G. Steven Agee, who took his seat in May, gave Republican appointees a narrow 6-5 advantage.
Appellate lawyers point to several recent cases that highlight the divide on the court—and why Obama appointments may make a difference. In July, the Republican-appointed judges on the bench were in the majority of a 5-4 en banc decision in Al Marri v. Wright that found civilians can be detained indefinitely in military confinement as “enemy combatants.” The Supreme Court on Dec. 5 granted certiorari.
The full court is also considering a challenge to Virginia’s “partial-birth” abortion ban, which for the second time was ruled unconstitutional by a 2-1 panel decision with two Clinton-appointed judges being in the majority. In 2006, by a 7-6 vote, largely on party lines and with Republican-appointed judges in the majority, the court found death row inmate Percy Levar Walton competent to be executed. In June, Virginia Gov. Tim Kaine (D) commuted the sentence to life in prison without parole.
Though he could end up in the minority more often, Wilkinson says he has no concern about the possible shift on the 4th Circuit and says any new judges who join the bench will meld seamlessly with the civility of the court. “The whole question of ideology is very much overplayed,” Wilkinson says.
Lawyers say Obama is unlikely to meet with resistance to his picks as long as he defers to the wishes of home-state senators. President George W. Bush didn’t do that with some of his 4th Circuit nominees, spurning even Republicans. Three of the five states in the circuit—Maryland, Virginia, and West Virginia—will have two Democratic senators come January. North Carolina will have a Democrat and a Republican, and two Republicans make up the South Carolina delegation.
Kelley says Senate Republicans should exploit the power of what he calls a “home-state prerogative,” forcing Democrats to be deliberate. Winning the support of the home-state senators will be crucial for Obama, Kelley says.
Preliminary staff-level discussions in the offices of Mark Warner, the newly elected Democrat in Virginia, and Sen. Jim Webb (D-Va.) have centered on “the need to move sooner rather than later” on the 4th Circuit, says Warner spokesman Kevin Hall. Guy Tower, executive director of the Virginia Bar Association, says his group is ready to “crank up” committees to review candidates when Webb and Warner ask.
Across the 4th Circuit, lawyers who regularly argue in the court are creating informal shortlists of lawyers and judges who have won praise among peers.
The North Carolina Bar is sure to get attention, court observers say, because the state has only one judge on the bench. “It’s been a long time coming. The chances are greater now than they have been in the last 15 years,” says Charles Becton, president of the North Carolina Bar Association and name partner at Becton, Slifkin & Bell.
Other possible North Carolina picks include Judge James Wynn Jr. of the North Carolina Court of Appeals, professor S. Elizabeth Gibson of the University of North Carolina School of Law, and U.S. Bankruptcy Judge J. Rich Leonard of the Eastern District of North Carolina.
In Maryland, lawyers say Obama should look at Judge Andre Davis of the U.S. District Court for the District of Maryland, who was nominated by Clinton. Notre Dame’s Kelley says if Obama is serious about bipartisanship then he should pick up the stalled nomination of U.S. Attorney Rod Rosenstein of Maryland.
For one of the Virginia slots, Young says two D.C. lawyers should get a look. They are: Akin Gump’s Millett, a former assistant to the solicitor general who co-heads the firm’s Supreme Court practice group, and Kellogg, Huber’s Frederick, also a former assistant to the solicitor general. Millett and Frederick, who live in Virginia, both donated money to Warner’s Senate campaign.
And in South Carolina, Young points to Nelson Mullins partner William Hubbard as a “great rising star” in that state. Hubbard chairs the firm’s business litigation and employment law group and is a member of the 4th Circuit Judicial Conference.
“Thinking in terms of Republican, Democrat, liberal, and conservative ought to take a back seat to intellectual firepower,” Young says. “We need to fill the vacancies with intellectually curious and bright people—and let’s leave the politics aside.”
Mike Scarcella can be contacted at email@example.com.