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If there’s any federal circuit that conservatives are eager to keep, well, conservative, it’s the U.S. Court of Appeals for the 4th Circuit, which hears many of the country’s most important terrorism cases. That may explain why the Bush administration was finally ready last week to concede the obvious: With Vermont Democrat Patrick Leahy now running the Senate Judiciary Committee, two long-standing 4th Circuit nominees, Department of Defense general counsel William Haynes II and U.S. District Judge Terrence Boyle of North Carolina, have zero chance of confirmation. (They withdrew their names from consideration last week.) There is even more urgency now given the numbers, with 12 active judges in the circuit and the potential for Bush to appoint at least five more. Chief Judge William Wilkins Jr. takes senior status in July, Judge H. Emory Widener Jr. will take senior status when a new judge is confirmed for his seat, and there are three more vacancies. The question is whether the Leahy committee will accept any judicial conservatives. Perhaps, if they’re not firebrands and are sufficiently credentialed, says University of Richmond law professor Carl Tobias. “I think [U.S. Solicitor General] Paul Clement would probably be confirmed,” he notes.
T.R. Goldman can be contacted at [email protected].

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