FedSoc Blog

Is the Fourth Circuit Losing its Conservative Reputation?


by Publius
Posted November 20, 2012, 8:53 AM

According to the Richmond Times-Dispatch:

In his first term, President Barack Obama has had an unprecedented impact on what was long considered the most conservative federal appeals court in the country.

Except for the handful of cases that make it to the U.S. Supreme Court, the Richmond-based 4th U.S. Circuit Court of Appeals is the court of last resort for the states of Virginia, Maryland, West Virginia and North and South Carolina.

Since taking office in 2009, Obama has appointed six judges to the 15-judge court, the most of any president in the court's 211-year history.

"There's no doubt that the 4th Circuit has fundamentally changed; the court has shifted dramatically as a result of appointments," said Kevin C. Walsh, a professor at the University of Richmond School of Law.

Walsh was a clerk for the 4th Circuit's Judge Paul V. Niemeyer, in 2002-03.

He noted that as recently as nine years ago - when the court had three vacancies and President George W. Bush was in office - the court was so famously conservative that The New York Times Magazine did a cover story on it:

"As Bush makes his selections, his staunch conservative supporters tout the 4th Circuit as a model to emulate, and liberals view it anxiously as a harbinger of doom. That's because the 4th Circuit, which has eight Republican and four Democratic appointees, is not only conservative but also bold and muscular in its conservatism. It is confident enough to strike down acts of Congress when it finds them stretching the limits of the federal government's power and hardheaded enough to rule against nearly every death row defendant who comes before it."

At the time, the court had two judges believed to be top Bush prospects for the U.S. Supreme Court: J. Michael Luttig, who has since left to become general counsel for Boeing Corp., and J. Harvie Wilkinson III.

Bush made four appointments to the 4th Circuit, including the 2001 nomination of Virginian Roger L. Gregory after President Bill Clinton made a temporary direct appointment of Gregory to the post in December 2000 while Congress was in recess.

But neither Luttig nor Wilkinson was ever nominated for the Supreme Court. And by the time Obama was elected, the Senate was controlled by Democrats and the 4th Circuit had four vacancies.

The 4th Circuit now has nine of its 15 judges appointed by Democratic presidents. . . .

The appeals court generally hears cases in three-judge panels, and sometimes the entire court agrees to hear an appeal of a panel's ruling in what is called an en banc.

"One way to see how the balance of power shifts is to see which cases are going en banc and who is on the winning side of those," Walsh said.

For example, Walsh said, the 4th Circuit recently heard an appeal by military contractors seeking immunity from suits filed over the Abu Ghraib prison in Iraq. The initial three-judge panel sided with the contractors in a 2-1 split.

The panel majority were Republican appointees and the dissenter, Robert B. King, a Clinton appointee. The court heard the case en banc and in an 11-3 ruling earlier this year reversed the three-judge panel.

"Maybe 10 years ago when you had a minority of judges who were appointed by Democratic presidents, (they) were usually on the losing side of the en banc cases, and now things have shifted," Walsh said.

Walsh noted that in 2009, Virginia's partial-birth abortion law was considered en banc by the court and upheld by one vote.

"On a very ideologically freighted issue, you saw a very closely divided court," he said. Were the question before full court today, Walsh said, "given the changes in the composition of the court, I'm not sure that case would come out the same way."


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