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President George W. Bush’s January decision against renominating two controversial 4th U.S. Circuit Court of Appeals nominees has significantly affected the court, which numerous observers consider the most ideologically conservative. One critical impact is that the 4th Circuit will soon have openings for a third of its 15 active judgeships, which could threaten justice’s delivery. If Bush wishes to fill the vacancies, he should work constructively with Democratic and Republican senators. Chief Judge William W. Wilkins’ determination to assume senior status on July 1 will leave four openings. Judge H. Emory Widener has indicated that he would become senior upon a suitable nominee’s confirmation, bringing to five the positions needing to be filled. Some are long-standing. No one has replaced North Carolina’s Judge J. Dickson Phillips, who went senior 13 years ago, or Maryland’s Judge Francis D. Murnaghan, who died in 2000. Bush’s choice not to renominate North Carolina District Judge Terrence W. Boyle and Defense Department General Counsel William J. Haynes basically necessitated starting over. The difficulty of filling vacancies was compounded, as a 51-49 Democratic majority in the Senate controls nominee hearings, floor debates and votes. Caseload will reach tipping point Active judgeships are premised on conservative case- and workload estimates. A court might briefly operate well absent a third of its members, but five openings will exact a toll. The pressure will intensify on the judges to resolve promptly, economically and fairly 5,300 annual filings. Indeed, the 4th Circuit now grants published opinions at the smallest rate (8%) and oral arguments at the next lowest (12%), which are crucial measures of appellate justice, although it continues to decide cases as fast as the 11 other tribunals, requiring only an average of 9.5 months. However, the court will reach a tipping point and find that the quality of justice is declining. Bush and the Senate could promptly fill the vacancies in many ways. First, they must identify which states comprising the 4th Circuit will receive the open seats. Tradition holds that states where judges have chambers retain these positions when jurists assume senior status, retire or die, but the convention is honored in the breach. The only statutory restraint is that all jurisdictions be represented. The seats are assigned by agreement of the states’ senators and the president. Each jurisdiction’s complement approximates its population. The 15 seats’ present allocation is: Maryland (3), North Carolina (2), South Carolina (4), Virginia (4) and West Virginia (2). This division is controversial in North Carolina, which has the largest population. Its senators asked Bush to assign their state the position of Virginia’s Judge J. Michael Luttig when he resigned in May 2006. Second, numerous measures will facilitate selection. The president should consult by proposing names to senators before nomination. Senators might concomitantly suggest a few candidates who possess intelligence, diligence, independence, balanced temperament and moderate views. Indeed, on June 12, Senator John Warner, R-Va., and Senator Jim Webb, D-Va., did just that when they recommended five well-qualified candidates for two Virginia openings. When Bush submits nominees with the above qualifications, they should receive expeditious hearings, floor debates and votes. The existing 4th Circuit vacancies may soon impair the court’s operations; however, the empty seats have apparently not undermined the delivery of justice yet. If President Bush and senators cooperate on judicial selection, they can promptly fill the openings with excellent judges and prevent or ameliorate justice’s decline. Carl Tobias is the Williams Professor of Law at the University of Richmond School of Law.

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