- The Washington Times - Saturday, October 3, 2009

Eight months into office, President Obama is moving far more slowly than his predecessor to fill federal court vacancies, leaving liberals waiting for the judiciary to tilt to the left.

At stake are precedent-setting rulings on issues that divide liberals and conservatives, includingimmigration, the death penalty, discrimination, campaign finance and abortion.

As of Oct. 1, Mr. Obama has submitted only eight nominees to fill 20 current appeals court vacancies. During his first full eight months in office, former President George W. Bush had nominations to fill 23 of 34 vacancies, according to figures compiled by the Alliance for Justice, a liberal court-watching group.

Mr. Obama has nominated only 10 people for 75 currently vacant district court judgeships. At this time in his first term, Mr. Bush had sent the Senate 32 district judge nominees for 81 then-vacant seats.

Mr. Bush, however, did not have to contend with a time-consuming Supreme Court nomination. While liberals would like Mr. Obama to pick up the pace on filling vacancies, they’re reluctant to criticize him after eight years of Mr. Bush’s mostly conservative court picks.

“The White House clearly got energy diverted to the Sonia Sotomayor nomination,” said Marge Baker, executive vice president at People For the American Way. “Now that it’s over I would like to see them pick up the pace at the White House.”

High stakes are particularly evident on the Richmond-based 4th Circuit Court of Appeals, once a bastion of conservative judges that is now equally divided between five Republicans and five Democrats - and has five vacant seats. Mr. Obama has made nominations to fill two of those vacancies; the Senate has yet to act on either of them.

Several decisions by the 4th Circuit court - which covers Virginia, Maryland, North Carolina, South Carolina and West Virginia - could be reversed by a different lineup of judges ruling on new challenges, such as:

c A 6-5 decision this year upholding Virginia’s pro-life “Partial-Birth Abortion Infanticide Act.”

c A 7-6 division in 2006 to uphold a death sentence against a man who contended he was mentally incompetent and mentally retarded.

c The 7-4 denial of a rehearing last year for an Ethiopian woman who contended she would be persecuted if deported. The full court, in denying the rehearing, upheld an earlier ruling that she could not remain in this country pending a final decision on her status. The case is important, because someone who is deported may never get back to the United States even if the immigrant eventually wins.

c A 7-4 ruling in 2004 against a woman claiming age and sex discrimination at work, on grounds that a fellow employee influenced supervisors to fire her.

The 4th Circuit court’s 6-5 abortion decision came down on June 24, just two weeks before its Republican-appointed chief judge, Karen Williams, announced her retirement due to early stages of Alzheimer’s disease.

Had Judge Williams retired two weeks earlier - or the Senate confirmed a nominee before she left - previous rulings declaring Virginia’s partial-birth abortion law unconstitutional likely would have stood on a 5-5 or 6-6 vote by the 4th Circuit.

“We would have won if the court waited three weeks,” said Dr. William Fitzhugh, who challenged the pro-life law on behalf of himself and the Richmond Medical Center For Women, where he is medical director.

In April, Mr. Obama nominated Andre Davis, a federal district judge in Maryland, to fill one of the 4th Circuit vacancies. The Senate Judiciary Committee approved Judge Davis’ nomination in early June but the full Senate has not voted on it.

The Philadelphia-based 3rd Circuit covering Pennsylvania, New Jersey and Delaware also is in store for a makeover. The court currently is split with six judges nominated by presidents of both parties. There are two vacancies, and Mr. Obama has made nominations for both.

Arthur Hellman, a professor of law at the University of Pittsburgh, said the 3rd Circuit is less likely to change dramatically because the ideological split has not been nearly as severe as the 4th Circuit.

“Even the Clinton appointees were a generally moderate group,” Mr. Hellman said of the 3rd Circuit court. “They were less liberal than Clinton appointees in other circuits and Bush appointees were less conservative than Bush appointees to other circuits.”

With future nominees, Mr. Obama also could gain a Democratic majority on the New York-based 2nd Circuit court, which also covers Vermont and Connecticut; win parity on the 1st Circuit court with jurisdiction in Maine, New Hampshire, Massachusetts, Puerto Rico and Rhode Island; and come within one seat of reversing a GOP majority on the District of Columbia Circuit - the court that rules most on major challenges to government agency decisions.

The District of Columbia Circuit currently has three Democrats, six Republicans and two vacancies.


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