- The Washington Times - Tuesday, November 18, 2008

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.

But such inaction could haunt the new president: Mr. Obama’s voting record while in the chamber - he will be the first president to have participated in filibusters of judicial nominees - and Democrats’ treatment of Mr. Bush’s selections could cause Republican roadblocks to having his choices approved.

Members of Mr. Obama’s transition team declined to comment on what types of nominees the president-elect is likely to pick for the 4th Circuit and whether he will work more with local lawmakers on the appointments.

Maryland Sen. Benjamin L. Cardin said that it’s too early to know what kind of people will be nominated, but that he hopes for a better relationship with the incoming administration.

“We did not have a very good relationship with the Bush administration on this,” said Mr. Cardin, a Democrat. “There’s not been a good process between the senators and the Department of Justice and administration.”

Webb spokeswoman Kimberly Hunter said she anticipates that having a Democratic president will lead to more consultation with Mr. Webb and the state’s new senator, Mark Warner, also a Democrat.

“Senator Webb looks forward to working closely with the White House, Senator Mark Warner, and the Virginia legal community to identify outstanding, qualified jurists to fill the 4th Circuit Court and other judicial vacancies in the upcoming 111th Congress,” she said.

Mr. Tobias said the court, with its narrow split, appears to have become less conservative in recent, closer decisions. In 2006, the judges ruled 7-6 that death-row inmate Percy Levar Walton was competent to be executed.

The full court in July ruled 5-4 that the president had authority to indefinitely detain Ali Saleh Kahlah al-Marri - a Qatari student legally living in the United States - while in a separate 5-4 ruling, the judges said Mr. al-Marri had not had an adequate chance to refute his designation as an “enemy combatant.”

Mr. al-Marri’s legal counsel has asked the Supreme Court to review the first decision by the court.

The court last month also heard arguments on the constitutionality of a Virginia law prohibiting a type of late-term abortion, after a previous 2-1 decision by a panel of the court declared the statute unconstitutional.

A ruling in that case could come early next year. And with Mr. Obama’s impending appointments, the court’s ideology could further shift to one side.

Appeals courts “really are the courts of last resort in 99 percent of cases because the Supreme Court hears so few appeals,” Mr. Tobias said. “They’re critically important in that way.”

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