The 4th Circuit

Change is coming to a pillar of American constitutionalist jurisprudence. The 4th Circuit Court of Appeals in Richmond, widely regarded as the most conservative federal appellate court in the country and the site of Judges Terrence W. Boyle’s and William J. Haynes II’s confirmation battles, could soon be one-third vacant.

Of 15 total seats, there are three longstanding and well-publicized vacancies, a fourth in the not-too-distant future when Judge H. Emory Widener retires and now a fifth. Three weeks ago, Chief Judge William W. Wilkins, a Reagan appointee, announced plans to assume “senior status,” a kind of working retirement, in mid-2007. Minus those two judges, the court will consist of six Republican appointees and four Democrats. If one counts Judge Roger L. Gregory among the Democrats — he is a 2000 Bill Clinton recess appointee renominated by President Bush and confirmed in 2000 — then the court is evenly split 5-5. It’s also worth mentioning the loss of Judge J. Michael Luttig, a towering conservative intellect, whose unusual departure to become senior vice president of Boeing Co. this year took most by surprise and stripped the court of a key figure.

Presuming a Democratic Senate through 2008 and a 50-50 chance of a Democratic presidential victory thereafter, at least some of this court’s distinctive conservatism is in danger of being lost, possibly even most of it. That would happen if Republicans cannot fill these seats before late 2008 and then end up losing the presidential election. The party needs to weigh the consequences of that outcome as fully as possible.

A liberal 4th Circuit the last few years would have seriously complicated the Bush administration’s prosecution of the war on terror and also would have deprived conservatives of several significant jurisprudential victories. This is the court that laid much of the legal groundwork for the administration’s policy on detainees (although it sided against the administration a year ago in the case of accused terrorist Jose Padilla).

One obvious solution is to nominate as many moderate, confirmable conservatives as possible now to avoid disaster after 2008. That would mean an end to the days of nominations like Judges Boyle and Haynes, so loathed by liberals. This will no doubt be a bitter pill for Republicans to swallow. But the party should debate the question now, thoroughly, also giving due consideration to the alternative, which is to continue pressing jurists who raise the hackles of liberals in full knowledge that they will fail.

When it comes to the 4th Circuit, the unusually high number of openings at a relatively unfavorable time for Republicans makes this either the end of an era or a substantially new chapter in the current one. It’s time to figure out how to proceed.

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