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The U.S. Court of Appeals for the D.C. Circuit, whose membership has been remarkably stable since the mid-1990s, will almost certainly undergo significant changes in its leadership and personnel this year. A new chief judge will be installed late this year — though it’s not clear who it will be — and President George W. Bush may have to make two appointments just to keep the court at the size it has operated at in recent years. In August, Chief Judge Harry Edwards will step down from his leadership post after serving nearly the maximum seven years. Although Judge Stephen Williams is first in line to succeed Edwards as leader of the court, the prevailing word is that Williams is inclined to take senior status when he is eligible in October rather than become chief judge. The next one in line after Williams, based on seniority, is Judge Douglas Ginsburg, 54, followed by Judge David Sentelle, 58. Williams, Ginsburg, and Sentelle did not return calls last week. But speculation among court watchers is that Ginsburg, who lives some 70 miles from the courthouse in rural Virginia, is also unlikely to want the job of chief and its administrative headaches. Sentelle is considered likely to accept the post if asked. In addition, the Bush administration is apparently poised to nominate at least one and probably two new judges to what is considered the nation’s most prestigious federal appeals court. First on the list of D.C. Circuit candidates, according to several sources close to the court or the Bush administration, is John Roberts Jr., a Hogan & Hartson partner. Roberts, 46, was nominated for the D.C. Circuit in the waning days of the administration of the elder George Bush but was not confirmed, just as his Hogan & Hartson partner, Allen Snyder, was left at the altar after being nominated by President Bill Clinton in 1999. Roberts, who was a deputy solicitor general in the Reagan administration, declines comment. Another name that has been frequently mentioned for a D.C. Circuit seat is that of Latham & Watkins partner Maureen Mahoney, 46. Mahoney, who was a deputy solicitor general in the first Bush administration and was nominated in its waning days for a district judgeship in Virginia, is considered, like Roberts, a topnotch legal thinker. She is also viewed as a nonideological conservative who could be confirmed in an evenly divided U.S. Senate or even in one narrowly controlled by Democrats. Mahoney declines comment. (The D.C. Circuit has two women among its nine active judges now, Democrat Judith Rogers and Republican Karen LeCraft Henderson.) Even if both Roberts and Mahoney were to join the court this year and Williams were to stay on, the circuit would not be at its full legally authorized complement of 12 judges. The 12th seat on the circuit, however, has not been filled since 1996, when Sen. Charles Grassley, R-Iowa, made it clear that he would object to any Clinton nominee for that seat. Grassley said the court’s workload didn’t justify filling the judgeship. Last May, in response to a letter from Sen. Jon Kyl, R-Ariz., then-D.C. Circuit Judge Laurence Silberman, a Republican, said the caseload was barely enough to keep the court’s roster of 10 judges busy. The statement by Silberman, who took senior status last November, was viewed by liberals as an attempt to stall the confirmation of Snyder. Although Snyder got a hearing at the Senate Judiciary Committee, the nomination did not reach the Senate floor last year. Edwards, citing caseload statistics of his own, said at the time in a letter to Kyl that the court’s workload had remained stable for years, implying that an 11th judge would be desirable to keep the appeals court running smoothly. Now under the Bush administration, with workload numbers remaining relatively constant, Edwards says he sees the need for 10 judges on his court but not for 11. “My position is that based on the existing workload of the court and its current backlog, the court does not need more than 10 active judges,” Edwards says. Silberman says, “I certainly won’t change my position [on the need for new judges] because the administration has changed.” Statistics released by the Administrative Office of the U.S. Courts last week show that the court’s caseload rose slightly from 1999 to 2000, with 1,506 appeals filed in fiscal 2000, up 4.7 percent from the previous year. The court also disposed of 1,582 cases. That left a backlog of 1,260 cases, which is 5.7 percent less than the backlog a year ago. The D.C. Circuit averaged 7.3 months between the filing of a notice of appeal to the final disposition of a case, well below the national average of 11.6 months. Edwards says there is no contradiction between his present position on the best number of judges for the court and the view he expressed last year. His May 2000 letter to Kyl noted that Silberman was eligible to take senior status that fall, reducing the court’s strength to nine judges and effectively making any new judge the 10th. White House Counsel Alberto Gonzales says President Bush is looking to fill all open judgeships — even those that, under the Clinton administration, Republican judges said there was no need to fill. “Congress allocated these slots,” says Gonzales, a top member of Bush’s judge-picking team. Although Gonzales won’t be specific about particular vacancies or circuits, court watchers say the administration clearly would like to fill at least two slots on the D.C. Circuit. Right now, the court has four active judges appointed by Democratic presidents and five named by Republicans. “It would surprise me if the course of events is not that the Bush administration moves to appoint two members to that court,” says Charles Cooper of Washington, D.C.’s Cooper, Carvin & Rosenthal, a conservative with close ties to the administration and its judge-pickers. But liberal activists are reminding Republicans, who in the Clinton years repeatedly asserted that the court was not busy enough to justify filling some vacancies, that the circuit hasn’t gotten any busier. “The very rationale that conservatives used to deny Clinton his nominations applies now even more, if you apply the logic consistently,” says Elliot Mincberg, legal director of People for the American Way.

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