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The U.S. Court of Appeals for the 4th Circuit, which will hear oral arguments this week at the start of its annual term, will be under the microscope as senators, legal experts, and conservative and liberal groups watch to see if five vacant judgeships will trigger an ideological shift in one of the nation’s most conservative federal appellate benches. “I think the ideological balance of that court is completely in play,” says Jay Sekulow, chief counsel of the conservative American Center for Law and Justice. “I think this is the most important judicial nominee fight that we’ve had in decades, and you’ve got an entire court of appeals hanging in the balance.” A full third of the 15 active judgeships on the 4th Circuit are vacant, accounting for five of the 16 vacancies on circuit courts nationwide. The 10 active judges are split 5-5 in an ideological divide that potentially pits five judges appointed by President Bill Clinton against five judges appointed by Presidents George W. Bush, George H.W. Bush, or Ronald Reagan. That even split, coupled with President Bush’s inability to get his nominees confirmed by the Senate for some of the vacancies, could shift the court toward the left and affect upcoming decisions in a key terrorism case, death penalty appeals, immigration issues, and labor disputes. William “Billy” Wilkins, a Reagan appointee who has served on the 4th Circuit since 1986, opted to step down as chief judge in July and take senior status after turning 65 this year. He doesn’t believe the five vacant judgeships will affect the quality of work from the court, where several U.S. district judges sitting by designation have helped fill some panels. But he says the vacancies will slow down the pace of decisions. “We feel on the 4th Circuit that [prompt decisions] are a good thing because lawyers and litigants need to have a decision and move on with their lives,” Wilkins says. “It means the 10 remaining [active] judges will have to do more work.” Though the 4th Circuit terminated 5,628 appeals during its 2005-06 term, it has the lowest percentage of published opinions among circuit courts nationwide and grants few oral arguments compared to other circuit courts. Karen Williams, a George H.W. Bush appointee who has served on the 4th Circuit since 1992, is now chief judge. She didn’t respond to requests for comment, and several other active judges declined to comment on the upcoming term. The 4th Circuit also lost one of its three senior judges last week when H. Emory Widener Jr. died after 35 years on the bench. Widener, 83, was a Nixon appointee who took senior status in July. “He was pretty active right up to the end,” says Carl Tobias, a law professor at the University of Richmond School of Law. “They have two senior judges, which helps a little but not a lot.” TERRORISM TUG OF WAR Known for backing the current Bush administration in terrorism cases, the 4th Circuit is set for an Oct. 31 en banc hearing in a closely watched case that could set precedent on whether “enemy combatants” arrested in America can be indefinitely detained without a trial or the filing of any charges. In a 2-1 panel decision in June, Judge Diana Gribbon Motz harshly rebuked Bush’s use of presidential orders to indefinitely detain enemy combatants arrested in the United States. Motz — a Clinton appointee who is one of the court’s most liberal judges — wrote in the 53-page decision that the sanctioning of such presidential authority “would have disastrous consequences for the Constitution — and the country.” “We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic,” she wrote. Motz was joined by Judge Roger Gregory, another Clinton appointee, in the decision, which ordered the release of Ali Saleh Kahlah al-Marri from a Navy prison in South Carolina, where he has been imprisoned for more than four years without facing any charges. Sitting by designation, Judge Henry Hudson from the U.S. District Court for the Eastern District of Virginia dissented and found that Bush had properly designated al-Marri as an enemy combatant. A legal U.S. resident from Qatar, al-Marri arrived in America on Sept. 10, 2001, with his wife and children to pursue a master’s degree at Bradley University in Peoria, Ill. Three months later, FBI agents arrested him at his home in Peoria, and he initially was imprisoned in civilian jails as an alleged material witness in the government’s investigation of the 9/11 terrorist attacks. In 2003, al-Marri was scheduled for trial in Illinois on seven federal charges alleging credit card fraud, false statements on bank applications, and lying to the FBI. He pleaded not guilty, but before the case could be tried, Bush signed an order declaring al-Marri an enemy combatant and ordering his imprisonment to “prevent him from aiding al-Qaida in its efforts to attack the United States.” The charges in Illinois were then dismissed. The 4th Circuit decision, which reversed a ruling from the U.S. District Court for South Carolina, found that al-Marri must be released from military custody but that he could still face criminal charges, deportation proceedings, or detainment as a material witness in grand jury proceedings. Al-Marri is still being held in the Navy brig, however, because the 4th Circuit vacated the panel decision when it granted an en banc hearing requested by the government. If the full court splits 5-5 in the case, then the district court’s decision will be affirmed. A Justice Department spokesman declined to comment last week on the appeal.
TERRORISM Al-Marri v. Wright Ali Saleh Kahlah al-Marri, a legal U.S. resident from Qatar who was arrested in Illinois, is seeking to be released from a Navy prison in South Carolina. Al-Marri has been held for more than four years without being charged with any crimes after being declared an “enemy combatant” by President George W. Bush. The presidential order claimed that al-Marri must be detained to “prevent him from aiding al-Qaida in its efforts to attack the United States.” The court granted an en banc hearing, scheduled for Oct. 31, after the government lost a 2-1 panel decision in June. That decision ordered al-Marri to be released from military custody because of numerous violations of the Constitution by the government. IMMIGRATION United States v. Oscar-Torres On Sept. 28, the court will hear arguments over whether an illegal immigrant’s status should have been suppressed after an unlawful vehicle stop. BUSINESS Go Computer Inc. v. Microsoft Corp. On Sept. 26, the court will hear arguments over whether an antitrust suit dismissed by a U.S. district judge in Maryland who ruled it was barred by a four-year statute of limitations should be reinstated.

Jonathan Hafetz, al-Marri’s attorney from the Brennan Center for Justice at the New York University School of Law, says al-Marri’s case should transcend political or ideological divides. “I think the right to habeas corpus and the right to a trial for individuals arrested in the U.S. is at the core of our Constitution,” he says. “These are rights that Americans from all parties have embraced and should embrace.” Hafetz says al-Marri was held in total isolation for 16 months at the Navy brig, with no access to a lawyer or his family. He was denied a copy of the Koran and basic necessities such as toilet paper and was subjected to stress positions during interrogations, Hafetz says. “We believe al-Marri was declared an enemy combatant not because the government thought the criminal justice system was incapable of addressing his case but because the administration wanted to subject him to highly coercive interrogation techniques in a number of respects that were tantamount to torture,” he says. �THE DEATH BELT’ During its four-day session of oral arguments this week, the court will hear five death penalty appeals. Known for frequently supporting law enforcement, the court rarely reverses death sentences. “The great majority are upheld,” Wilkins says. “We get a lot of death penalty cases, and that is because four of our five states in our circuit are very active in the pursuit of the death penalty.” The 4th Circuit covers Virginia, Maryland, West Virginia, and the Carolinas. Virginia is second only to Texas in its number of executions. Jack Payden-Travers, director of Virginians for Alternatives to the Death Penalty, isn’t very optimistic about a shift on death penalty cases. “It can’t hurt. The political situation in the 4th Circuit hopefully can’t get worse,” he says. “The 4th Circuit is largely a Southern circuit, and the South is where all the executions take place. It used to be the Cotton Belt. It’s now the Death Belt.” Sekulow says some of the court’s more liberal judges also support capital punishment, so the current 5-5 ideological split may not affect death penalty appeals. The 4th Circuit also will hear arguments in several immigration cases, including United States v. Oscar-Torres, on whether evidence of an illegal immigrant’s status should have been suppressed after an unlawful vehicle stop. Tobias says the al-Marri case is the most important appeal before the 4th Circuit, but he wouldn’t speculate on the outcome of the en banc hearing. He says the court’s current makeup could shift some decisions in other areas, including labor disputes, where the court usually has sided with big business. The court will hear oral arguments this week in Evergreen America v. National Labor Relations Board, about evidence relating to unfair labor practices; Smithfield Packing v. National Labor Relations Board, on whether a walkout was a protected activity; and three appeals on whether black lung, or pneumoconiosis, contributed to the death or injury of three miners. In business cases, the court will hear oral arguments this week in Go Computer Inc. v. Microsoft Corp., an antitrust suit that was dismissed by a U.S. district judge in Maryland who found it was barred by a four-year statute of limitations. On the lighter side, the court will hear arguments this week in a trademark infringement suit from Louis Vuitton, the French luxury leather goods company, against Haute Diggity Dog, which sells a dog bed called “Chewy Vuiton.” LOSING BATTLE? Constrained by his lame-duck status and stiff opposition from Democrats in the Senate, Bush hasn’t yet been able to obtain confirmation for three of his conservative nominees for vacant judgeships on the 4th Circuit. Bush still hasn’t named anyone to replace former Judge J. Michael Luttig, who resigned last year to become general counsel for Boeing Co., or the late Judge Francis Murnaghan, who died in 2000. Bush’s current nominees include E. Duncan Getchell Jr., a Federalist Society member and appellate group chairman at McGuireWoods in Richmond, Va., and Steve Matthews, managing director of Haynsworth Sinkler Boyd in Columbia, S.C. In July, Bush nominated Chief Judge Robert Conrad Jr. of the U.S. District Court for the Western District of North Carolina to fill another 4th Circuit judgeship that has been vacant for 13 years. Bush’s nomination of Getchell to fill one of the judgeships traditionally held by Virginia has drawn fire from Virginia Sens. Jim Webb Jr. (D) and John Warner (R) because Bush ignored their list of candidates. That opposition may doom Getchell’s chances of being confirmed. Wilkins says it is “certainly possible” that Bush won’t be able to fill any of the five vacant judgeships. “That’s part of the political process,” he says. “The judges on the court, we stay out of the political process.” Tobias believes the Bush administration will turn the confirmation fights into a campaign issue in the next presidential election by picking very conservative candidates who appeal to the Republican base, even if the nominees have no chance of being confirmed in the Democrat-majority Senate. “It now looks pretty clear that President Bush may not fill any of those five [vacancies],” he says. “They don’t have anybody to blame but themselves. It’s gone on and on and on. They either have their way, or they don’t want to play. Now it’s too late.”

Brendan Smith can be contacted at [email protected].

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