- The Washington Times - Monday, July 2, 2007

RICHMOND — The federal appeals court widely considered the country’s most conservative also has the most judicial openings, prompting concerns about its ability to continue to resolve cases promptly.

Chief Judge William W. Wilkins took senior status yesterday, leaving four vacancies on the United States Court of Appeals for the Fourth Circuit. Judge H. Emory Widener Jr. has told President Bush that he also will take senior status when a successor is confirmed.

The vacancies amount to nearly a third of the 15 slots authorized for the court, which has handled some of the country’s biggest terrorism cases, including that of September 11 conspirator Zacarias Moussaoui. The circuit includes Maryland, Virginia, North Carolina, South Carolina and West Virginia.

Judge Wilkins acknowledged that the high vacancy rate is a potential problem.

“It won’t affect the quality of work, I’m sure,” he said. “But it will increase the time between filing an appeal and a decision being handed down.”

Only one of the other 11 federal appeals courts decides cases faster than the Fourth Circuit, where the median time is 9.5 months.

The national median is 12.2 months, according to statistics kept by the federal judiciary. But statistics show that the court is getting slower. The court had a turnaround time of seven months in 2003, but its caseload also has increased from 4,887 that year to 5,460 in 2006.

“Any appellate lawyer who focuses on this will perceive a troublesome trend,” said L. Steven Emmert, chairman of the Virginia State Bar’s appellate practice subcommittee.

The vacancies date back as far as 1994, when Judge J. Dickson Phillips Jr. took senior status. That’s by far the oldest opening in the entire federal court system. The third-oldest vacancy was created by the death of Judge Francis Murnaghan of the Fourth Circuit in August 2000. The court’s other open seat was held by Judge J. Michael Luttig, who resigned last year.

The judicial branch has listed the Phillips and Murnaghan openings as “judicial emergencies,” based on caseload and the duration of the vacancies, but Mr. Bush has not nominated anyone for the court since withdrawing two nominations in January.

The president had nominated U.S. District Judge Terrence Boyle of North Carolina for Judge Phillips’ seat and Pentagon lawyer William J. Haynes II for Judge Widener’s, but neither were acceptable to the Senate’s new Democratic majority.

The appeals court has been largely supportive of the president’s war against terror, allowing the military to indefinitely detain without charges “enemy combatants” captured overseas and backing the CIA’s practice of taking captured terrorism suspects to foreign countries for interrogation. However, a three-judge panel of the court in June rejected the detention of a U.S. citizen captured on American soil and held as an enemy combatant.

Last month, Virginia’s two U.S. senators — John W. Warner, a Republican, and James H. Webb Jr., a Democrat — recommended to Mr. Bush five more candidates for the court. Mr. Emmert said such bipartisan recommendations are unusual, and he predicted that Mr. Bush will seriously consider them.

However, Irvin W. Hankins, president-elect of the North Carolina State Bar, said he is not optimistic as Mr. Bush’s term ends.

Carl Tobias, a University of Richmond law professor, also thinks getting judges confirmed will become increasingly difficult as the presidential election approaches.

“Democrats in the Senate are eyeing those seats for themselves,” he said. “In 2008, it’s going to be tougher. The sooner Bush moves, the more likelihood he can have them confirmed.”

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