Vacancies on federal appeals court prompt worries
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
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
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
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
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
“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
Carl Tobias, a
“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,
“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.
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