Obama's picks may shift 4th Circuit

Conservative bench has four open seats

By Gary Emerling (Contact) | Tuesday, November 18, 2008

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One of the country's most traditionally conservative appellate courts offers President-elect Barack Obama a prime opportunity to begin reshaping the federal bench.

The 4th U.S. Circuit Court of Appeals - with jurisdiction over five states, including Maryland and Virginia - has sided with conservatives on such issues as tobacco regulation and civil remedies for rape victims and has handled key cases involving terrorism suspects.

Four vacancies on the 15-member court based in Richmond have created a 6-5 split between judges appointed by Republican and Democratic presidents. Mr. Obama, a Democrat, can remake the bench with members who hold to his preferred ideology.

"The potential is there because it has the highest percentage and number of openings of any of the 13 appeals courts," said Carl Tobias, a law professor at the University of Richmond who studies the 4th Circuit. "If you see it as an opportunity, then that is significant in a court of 15 that you can name four people immediately."

Nominations for the Supreme Court, appellate courts and district courts are made by the president and confirmed by the Senate.

The 4th Circuit's vacancies date to 1994, when Judge J. Dickson Phillips Jr., of North Carolina, took senior status. Since then, one judge has died and two more also took senior status.

Mr. Tobias said the 4th Circuit vacancies have stayed open in part because President Bush at times forwarded his nominees without consulting senators representing the state from which the seat is traditionally filled.

For example, Virginia Sens. John W. Warner, a Republican, and Jim Webb, a Democrat, objected last year to Mr. Bush's nomination of E. Duncan Getchell Jr. to the court because the Richmond lawyer was not on a list of potential nominees that the senators sent to the president.

The Senate's Judiciary Committee did not move the nomination to a hearing, and the White House withdrew Mr. Getchell's name in January at his request..

Democrats took over the Senate in 2006. Mr. Bush's four current nominees - three sent forward last year and one in May of this year - have not had a hearing in the judiciary committee and are unlikely to during the waning, lame-duck days of Mr. Bush's presidency.

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