Obama could nominate Va. judges

Vacancies in the U.S. 4th Circuit Court of Appeals in Richmond
are among seats nationwide that need appointees.

By Peter Dujardin, The Daily Press – 11/28/2008

President-elect Barack Obama stands a good chance of nominating one — or more — U.S. Supreme Court justices. But Obama could have another big impact on the federal judiciary: He will have the ability to name dozens of judges to federal trial courts and appeals courts across the land.

Among the seats that need filling: four longtime vacancies at the U.S. 4th Circuit Court of Appeals, in Richmond.

That court — with jurisdiction over Virginia, West Virginia, Maryland, North Carolina and South Carolina — is supposed to have 15 seats. But it’s been operating lately with only 11 permanent judges.

“The 4th Circuit badly needs the bodies,” said L. Steven Emmert, the Virginia Beach-based chairman of the Appellate Practice Subcommittee of the Virginia State Bar’s litigation section. “When you get down so many judges for so long, it does get troublesome. The caseload starts to get overwhelming.”

Because Democrats hold the majority in the Senate, Obama will likely have an easier time winning approval for his nominees than President George W. Bush has had, said Emmert, who runs the Web site, Virginia Appellate News & Analysis at www.virginia-appeals.com .

He said he thought Obama would likely select moderate choices who would win approval.

“What we’ve had was a Republican president proposing relatively non-centrist candidates to a Democratically-controlled Senate,” Emmert said. “That’s a recipe for gridlock … I don’t have any inside information from Obama’s people, but my sense is that he would appoint relatively centrist candidates.”

Virginia jurists have traditionally held four of the 15 seats on the 4th Circuit — with one of those four seats now open.

That seat was most recently held by the late Judge H. Emory Widener Jr., from southwest Virginia. Widener announced in 2001 that he was moving to senior status and wanted to retire in 2003, but ended up serving until 2007, the year he died.

Obama’s pick for the seat could come from a list of centrists put together by Virginia Sens. John Warner and Jim Webb in June 2007. The Republican and Democratic senators jointly suggested five names in a letter to Bush after the Senate was holding many Bush nominees up.

The candidates on the list include: Glen E. Conrad, a U.S. District Judge in the Western District of Virginia; Thomas E. Albro, an attorney from Charlottesville; John G. Douglass, dean and professor at the University of Richmond School of Law; and Justice Donald W. Lemons of the Virginia Supreme Court.

Another name on the list was Justice G. Steven Agee of the Virginia Supreme Court. Bush nominated Agee for another seat on the 4th Circuit, with the Senate unanimously confirming him in May. And after two unsuccessful attempts to push other nominees through for Widener’s seat, Bush nominated Conrad in May.

But the Democratic-controlled Senate Judiciary Committee never acted on the pick, even though the Democrat Webb was among those who gave approval.

Conrad’s nomination is technically still pending, though experts don’t believe the Democrats will act on any nominations until Obama takes office.

Bush’s previous two picks for Widener’s seat didn’t fare well. Bush first tapped Pentagon general counsel William J. Haynes II for the spot. Haynes’ nomination drew fire from Democrats, and some Republicans, because of his role in formulating rules on torture. Haynes withdrew his name from consideration in January 2007.

Bush then nominated E. Duncan Getchell, from the McGuireWoods law firm in Richmond.

That nomination also went nowhere, also because of a lack of support in the Senate. Getchell had been involved in a dispute with another attorney over who was at fault for failing to send in a trial transcript in an appeal on a personal injury case. The misstep led to Wintergreen ski resort getting a judgment against it for $8 million.