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The politics of judge-picking have been a particularly virulent pox on the Senate over the past few years; lately, it’s the U.S. Court of Appeals for the 4th Circuit where the battle lines are most closely drawn. Of the three or four highly contentious circuit court nominees awaiting Senate confirmation, two are set to fill slots on the Richmond, Va.-based court: U.S. District Judge Terrence Boyle and Department of Defense general counsel William Haynes II, whose tenure at DOD includes controversial policies on detainees and torture. A third slot on the court has been vacant since Baltimore attorney Francis Murnaghan Jr. died almost six years ago. Maryland’s two Democratic senators, Paul Sarbanes and Barbara Mikulski, have long insisted that the Bush administration choose a lawyer with deep Maryland roots. The White House acceded in 2004 by nominating its chief domestic policy adviser, Claude Allen, the former secretary of health and human resources for the commonwealth of Virginia. Allen, who had never practiced in Maryland and whose 4th Circuit nomination lapsed in December 2005, resigned from the White House in February, shortly before he was charged with a felony theft scheme for allegedly defrauding department stores by returning items he had not purchased and claiming a refund. And now, since the May 10 resignation of the circuit’s intellectual star, Judge J. Michael Luttig, a squabble is brewing over which state � North Carolina or Virginia � will lay claim to Luttig’s seat. The 4th Circuit encompasses West Virginia, Virginia, Maryland, North Carolina, and South Carolina. It has long had a reputation as the most conservative of the 13 federal appellate courts. And it is arguably the most courtly: Its judges, in panel or en banc, step down from the bench and shake hands with the litigants at the end of each oral argument. “We draw on the really nice things about the South and our region, including its gentility,” says Judge J. Harvie Wilkinson III, a former Reagan Justice Department official who was appointed to the court in 1984 and, along with Luttig, has long been mentioned as a possible Supreme Court nominee. Luttig, a former top official in the Justice Department’s Office of Legal Counsel during the first Bush administration, was a “Virginia” nominee because, while he worked in Washington, he lived in the commonwealth. Virginia, in fact, has four of the circuit’s 15 seats, while North Carolina, the circuit’s most populous state, has but one, occupied by Judge Allyson Duncan, whom Bush nominated in 2003. (A second North Carolina seat is awaiting Boyle, a U.S. district judge in North Carolina whose problematic nomination remains as much of a long shot as it was when he was first picked by President George W. Bush’s father for the circuit, in 1991.) Prompted by Luttig’s resignation to become the Boeing Co.’s general counsel, North Carolina GOP Sens. Elizabeth Dole and Richard Burr sent the White House a letter earlier this month complaining about their state’s one seat, a situation they called “tremendously unfair to the residents of our great state.” Of course, says University of North Carolina law professor Michael Gerhardt, the irony is that the paucity of North Carolina judges is due in part to the state’s former Sen. Jesse Helms (R), who spent the entire Clinton presidency blue-slipping every North Carolina nominee. The practice allows a home-state senator to effectively keep a nominee from coming up for a vote in the Senate Judiciary Committee, a precursor to Senate confirmation. Among the many Clinton choices Helms deep-sixed were two African-American judges, James Wynn Jr. of the North Carolina State Court of Appeals and former North Carolina Middle District Court Judge James Beaty Jr. “You have to go back to 1980 to find the last Democratic appointee to the circuit from North Carolina,” says Gerhardt. “Helms had been blocking all Democratic appointees to the 4th Circuit for years.” Indeed, notes Gerhardt, Clinton had become so frustrated with trying to name a black North Carolinian to the circuit that he finally picked a Virginia lawyer, Roger Gregory, for the seat. The population of the circuit’s five states is nearly a quarter African-American. Gregory, a one-time law partner to former Virginia Gov. Douglas Wilder (D), was recess-appointed on Dec. 27, 2000, a procedure that allows a president to bypass a formal confirmation process. He was formally nominated on May 9, 2001 � becoming the circuit’s first African-American � as one of a slate of Bush’s earliest circuit court nominees, a group that also included Boyle. In the curious politics of circuit court appointees, Gregory’s seat, once destined for a North Carolinian, now became one of four Virginia seats. And now that Luttig has resigned, both Dole and Burr say they want their seat back. After all, they note, North Carolina has 1 million more residents than Virginia. “What cracks me up about the Luttig seat, about Dole and Burr saying they need more representation, is that their predecessor, Helms, was holding so many nominations up,” says Leslie Proll, the director of the D.C. office of the NAACP Legal Defense Fund. Indeed, the makeup of any circuit court, including the 4th, is in large measure a function of which senators represent its states. Take South Carolina, which has fewer than half of North Carolina’s 8.4 million residents but twice as many slots on the court. Consider the fact that South Carolina’s Strom Thurmond (R), who left office in 2003 at the age of 100, sat on the Senate Judiciary Committee beginning in 1967; he was chairman in the early 1980s and its ranking member until 1992. Judge Dennis Shedd, Thurmond’s former top personal staffer and chief counsel when the late lawmaker chaired the Judiciary Committee, was confirmed to the 4th Circuit by the Senate on Nov. 19, 2002, less than two months before Thurmond left the Senate. At the time, Shedd was assailed by many Democrats for what they said were unfavorable rulings to plaintiffs in employment and civil rights cases. “Shedd was a gift the Senate gave Strom Thurmond when he departed,” Proll notes. Democratic senators who serve during a Republican administration, as is the case with Maryland’s two senators, find their influence severely diminished � at least with this White House. Before Allen’s 2004 nomination to the 4th Circuit, the name of D.C. lawyer Peter Keisler had been seriously floated, but he took himself out of the running after Sarbanes and Mikulski opposed him. Keisler, now the assistant attorney general for the Civil Division, was not a member of the Maryland Bar. The latest potential nominee, reported in April by The Baltimore Sun, is U.S. Attorney Rod Rosenstein, a native Pennsylvanian who lived and worked in Maryland for several years prior to his appointment as U.S. attorney, and is opposed by Sarbanes and Mikulski. Sarbanes, who is retiring, has a particular fondness for the circuit; in 1960 and 1961 he clerked for Morris Soper, a 4th Circuit judge appointed by President Herbert Hoover. Meanwhile, Virginia Sens. John Warner and George Allen, both Republicans, are hardly conceding Luttig’s now-vacant seat to North Carolina. “We’ve already been in touch with the White House on specific recommendations,” says Warner spokesman John Ullyot. Though it’s not clear whom exactly the senators have suggested, at least four or five names have been floated by the state’s influential bar associations. These include Charlottesville trial lawyer Tom Albro; U.S. District Judges Walter Kelley Jr., Henry Hudson, and Glenn Conrad; state Supreme Court Justice Donald Lemons; and University of Richmond law professor John Douglass, a former 4th Circuit clerk and assistant U.S. attorney. That leaves the circuit’s two most problematic nominees, Boyle and Haynes. Boyle was voted out of the Senate Judiciary Committee exactly one year ago and is set to go to the floor of the chamber, but it’s anybody’s guess as to whether Senate Majority Leader Bill Frist (R-Tenn.) will actually bring up the nomination. Earlier this month, Republican Judiciary Committee staffers held eight half-hour briefings a day for nearly a week to help staffers respond to charges that Boyle had violated federal law by issuing orders in at least nine cases involving corporations in which he had stock holdings. “We found five cases in which there were strict technical violations in which Boyle should have recused himself,” says a Senate GOP staff counsel. “But they were administrative oversights. He ruled in over 16,000 cases; these five slipped through the cracks.” Most Democrats, however, aren’t buying that argument. “A conflict of interest is a conflict,” says a staffer for one Democratic member of the “Gang of 14,” the group of seven GOP and seven Democratic senators who vowed not to block any judicial nominations unless there were “extraordinary circumstances.” Haynes, who was first nominated in September 2003, is even more problematic. “There’s no way they want him discussed right now,” says a senior Republican aide, referring to both the White House and Republican senators up for re-election. “They don’t want to talk about Abu Ghraib during election season.” Besides, Haynes’ nomination won’t get to the Senate floor without another hearing in the Judiciary Committee. Asked last week about holding another hearing on Haynes, committee Chairman Arlen Specter (R-Pa.) was carefully ambiguous. “I’m considering it. I’m considering it,” he said.
T.R. Goldman can be contacted at [email protected].

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