Vacancies on federal appeals court prompt worries

Associated Press, June 29, 2007  

RICHMOND, Va. (AP) — The federal appeals court widely considered the nation’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 July 1, leaving four vacancies on the 4th U.S. Circuit Court of Appeals.

Judge H. Emory Widener Jr. has told President Bush that he, too, will take senior status once 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 Sept. 11 conspirator Zacarias Moussaoui. The circuit includes Virginia, West Virginia, Maryland, North Carolina and South Carolina.

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

“It won’t affect the quality of work, I’m sure,” Wilkins said in a telephone interview from his chambers in Greenville, S.C. “But what it will do is 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 4th Circuit, where the median time is 9.5 months. The national median is 12.2 months, according to statistics kept by the federal judiciary.

Wilkins said the 4th Circuit takes pride in its rapid disposition of cases, but statistics show 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 of Virginia Beach, 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 4th 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 President Bush has not nominated anyone for the court since withdrawing two controversial nominations in January.

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

The appeals court has been largely supportive of Bush’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. In a departure, 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 — Republican John Warner and Democrat Jim Webb — recommended to Bush five more centrist candidates for the court. Emmert said such bipartisan recommendations are unusual, and he predicted Bush will seriously consider them.

“They did a very commendable thing in getting their heads together and saying these are people both sides can live with,” Emmert said. “It’s designed to break the logjam.”

However, the president-elect of the North Carolina State Bar said he is not optimistic as the clock winds down Bush’s term.

“The word I’ve been hearing is there’s not going to be any movement on this front in the near future,” said Irvin W. Hankins of Charlotte, N.C.

Carl Tobias, a University of Richmond law professor, said getting judges confirmed will become increasingly difficult as next year’s presidential election approaches.

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

Hankins said that whenever the positions are filled, North Carolina is entitled to three or four slots. Federal appellate seats are generally split among states based on population, but Allyson Duncan is the only North Carolina judge now active on the court.

“Just as we have geographic distribution of representatives in the legislative branch, it helps justice and fairness if representation in the judicial branch is spread out evenly,” Hankins said.

North Carolina has had nominees in recent years, but Duncan is the only one to survive the increasingly political confirmation process. Sen. Jesse Helms had blocked President Clinton’s Democratic nominees, and Democratic Sen. John Edwards blocked President Bush’s nominees before Duncan won Senate confirmation in 2003. Boyle was the latest North Carolina casualty.

Meanwhile, the Richmond-based appeals court has forged ahead by bringing in district court judges to help take up the slack. That tactic helps keep the docket moving, but Wilkins and Emmert both say it’s not an ideal solution.

“We can do that up to a point,” said Wilkins, who plans to continue hearing a limited number of cases as a senior judge. “But they have their own dockets, and if they’re sitting with us for a week their cases can get behind.”

Emmert said the appeals court sometimes even reaches outside the circuit for help. He recalled arguing one case before a three-judge panel that included a judge from the 6th Circuit, based in Cincinnati. Outside judges, no matter how qualified, cannot be expected to know as much about a circuit’s case law as its sitting judges, Emmert said.