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When Pennsylvania Republican Sen. Arlen Specter asked that Leslie Southwick’s nomination to the U.S. Court of Appeals for the 5th Circuit be taken off the Senate Judiciary Committee’s agenda last month, it was an acknowledgment that after weeks of trying, Southwick just didn’t have the votes. Although Republicans are expected to push his bid again after the July 4 break, the stalemate over the nomination is emblematic of the increasingly tough environment the Bush administration faces in getting federal judges onto the bench. The game, as it were, has changed, and the president’s window is closing. After a period of relative ease in securing two U.S. Supreme Court appointments and several controversial judicial nominations after the Senate’s “Gang of 14″ deal two years ago, the question remains whether the GOP will continue to make such gains in the federal judiciary during President George W. Bush’s last 18 months in office. “[Bush's] opportunity to fill vacancies is shrinking, and he probably will be unable to make the kinds of nominations that he made prior to 2006,” says Michael Gerhardt, a law professor at the University of North Carolina. Nowhere will that be more apparent than on the influential 4th Circuit. With four vacancies and a fifth judge waiting to be relieved before taking senior status, the balance of the appeals court, which has played a key role in terrorism cases and has long been a bastion of conservative rulings, could remain unstable. Bush, who earlier in his presidency made judicial nominations a high priority, has turned strangely silent on the vacancies on the 4th Circuit. So far, the White House hasn’t named anyone to the court after withdrawing two of the president’s prior controversial picks. But last month’s decision by Virginia Sens. John Warner (R) and James Webb Jr. (D) to put forward five potential nominees for the two open Virginia slots has court watchers waiting for the administration to make a move. Filling the vacancies could mean more than simply easing the court’s workload. The court is currently split between six judges who were appointed by Republican presidents and five judges picked by Democrats. (The two sitting senior judges are also Republican appointees.) Allowing the open slots to fall to a potential Democratic president in the next term could shift the balance of power on a court famous for its conservative firepower. “If they wait too long, they will miss an opportunity,” says Curt Levey of the right-leaning Committee for Justice. “At this point, I have faith they will nominate at least a few people to the 4th Circuit.” ROCKY ROAD Securing a nomination to the 4th Circuit, which encompasses Virginia, West Virginia, North Carolina, South Carolina, and Maryland, hasn’t been easy, even for an administration that has long prided itself on using its influence to sway the power of the courts in its direction. Case in point are the failures of Bush’s top two choices for the bench: Defense Department general counsel William Haynes II and U.S. District Judge Terrence Boyle of the Eastern District of North Carolina. Haynes, a former partner at Jenner & Block and former associate general counsel at General Dynamics, faced opposition from the start. Nominated in early 2006 for the Richmond, Va., slot on the bench, he drew strong criticism from Democrats and even Republicans such as Sen. Lindsey Graham (S.C.) for his role in green-lighting controversial interrogation techniques and detention policies for suspected terrorists. Bush also looked to Boyle, a Reagan administration judicial appointee, to fill the long-vacated North Carolina seat. First nominated in 2001, Boyle lingered without a vote on the Senate floor, facing opposition of Democrats including then-Sen. John Edwards (D-N.C.). And this wasn’t his first time trying to get on the 4th Circuit. Boyle had originally been nominated in 1991 by President George H.W. Bush. But the Senate has a long memory, and court watchers in both parties say that stonewalling Boyle was in part payback for Sen. Jesse Helms’ (R-N.C.) derailing of several Clinton-era judicial nominees. (Boyle was once an aide to Helms.) After the November 2006 elections, the Bush administration understood the political reality that Haynes and Boyle would be nonstarters with a Democratic majority in place and pulled their nominations in January. Since then, the seats have remained open with little signal from the White House as to when, or if, the administration expects to put nominees forward to fill the seats. SLOW AHEAD Long considered one of the more conservative appeals courts, the 4th Circuit also has a reputation for having one of the most rapid dockets in the country, providing the lowest percentage of published opinions of any federal appeals court, according to Carl Tobias, a professor at the University of Richmond School of Law. With about a third of the seats vacant, the court has relied on senior judges and has sometimes asked district judges and appeals court judges from other circuits to lend a hand for its expansive caseload. “It takes a while for vacancies to really have an impact on the court,” says Senior Judge William Wilkins, who stepped down as chief of the circuit last week. “One or two vacancies � most courts experience that all the time. We are approaching a critical situation now with four vacancies on the court. “What that will mean is, over the long haul the cases will not be decided as expeditiously as they are now.” The Virginia senators are hoping that such a slowdown won’t be necessary. On June 12, Warner and Webb sent Bush a list of five potential choices for the two Virginia slots. The pair had narrowed down a list of more than a dozen, dropping some of the more controversial choices, such as E. Duncan Getchell Jr. of McGuireWoods, who had been one of former Virginia Republican Sen. George Allen’s picks last time around, and H. Christopher Bartolucci, a former associate White House counsel in the Bush administration who is now at Hogan & Hartson, instead favoring more middle-of-the-road candidates. The list now includes Thomas Albro, a partner at Charlottesville, Va.-based Tremblay & Smith; Judge Glen Conrad of the U.S. District Court for the Western District of Virginia; John Douglass, a professor at the University of Richmond law school; and Justices Steven Agee and Donald Lemons of the Virginia Supreme Court. Agee and Lemons were previous picks of Allen and Warner. But persuading an embattled White House to consider someone less than an ideal ideological conservative could be a hard sell, meaning that the administration might rather do nothing than strike a deal and staff up the 4th Circuit. “In the past the White House has really been consumed with appellate court nominations, getting the right kind of ideology, and it doesn’t want to compromise if they can help it,” Gerhardt says. THE 5TH ELEMENT How Southwick’s nomination to the 5th Circuit plays out could help determine the playbook for securing potential nominees for the 4th. Initially, Southwick, Bush’s third try at filling the appeals court slot based in Mississippi, wasn’t expected to ignite controversy, and conservative advocates were unprepared for the strong opposition to his confirmation from liberal groups. At issue are two opinions Southwick joined but did not write. In one case, Southwick joined a majority opinion that upheld the reinstatement of a white social worker who used a racial epithet to describe a black co-worker. In the other case, which has caused opposition from gay rights groups, Southwick joined a majority opinion that said a mother’s bisexuality could be a factor used by a judge when deciding a child custody suit. And although the Republican leadership has vowed to use procedural tactics to delay floor action if the Democrats don’t move on judges, their power is waning with Democrats looking to the 2008 presidential election. “I think right now Democrats are optimistic that they are going to win the White House in 2008 and therefore are all the more reluctant to let any seats be filled,” says M. Edward Whalen III, president of the Ethics and Public Policy Center, a conservative nonprofit. But conservatives aren’t surrendering just yet. According to the Committee for Justice’s Levey, judicial advocates are starting to have coalition meetings and are preparing for battle should Bush move on a 4th Circuit nominee. “Republicans will extract a heavy price should Southwick fail,” Levey says. “With four or five vacancies on the 4th Circuit, if they were all to be unfilled at the end of the president’s term, it would be a huge lost opportunity.”
Anna Palmer can be contacted at [email protected].

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