[Posted December 22, 2010] As you may have seen, the Senate has confirmed Judge Albert Diaz of North Carolina for a seat on the US Court of Appeals for the Fourth Circuit. The elevation of Judge Diaz from the North Carolina Business Court brings the Fourth’s list of judges up to just short of a full complement – 14 out of the authorized 15 seats will now be filled. The last seat remaining vacant is that of Judge Karen Williams of South Carolina, who retired last year; I’m not aware of any pending nomination for that position, so the ball is in President Obama’s court on that one.

Just two years ago, the Fourth languished when it came to Senate confirmations. At one point, there were five vacancies on the 15-member court, an intolerable situation that caused the court to rely heavily on district judges sitting by designation, visiting judges from other circuits, and even the occasional US Supreme Court Justice riding circuit (Justice O’Connor, post-retirement, comes immediately to mind). I suspect that the court has also dealt with the shortage in another, less desirable way: by cutting back on the number of oral arguments granted. Read on.

In the year ended March 31, 2010, the court disposed of just under 3,000 cases on the merits, and this doesn’t include 2,000 more procedural terminations. Of those 3,000, the court bestowed oral-argument privileges upon just 378 cases. By way of comparison, the Second Circuit granted oral argument 40% of the time; the Seventh, nearly half the time; and even the much-maligned Ninth over a third of the time. The national average in the federal circuits was about 27%.

That means that in the Fourth Circuit, your odds of getting oral argument last year were about one in eight (12.7%). Unless the level of advocacy – including appellate case selection – is just god-awful in the Fourth Circuit, I simply cannot conceive that seven out of eight cases there are either so frivolous or so obvious in outcome that the appellants shouldn’t at least have a chance to come in and ask a live panel of judges to reverse their judgments. The court has to be forgoing oral arguments to save on judicial resources.

My earnest hope is that this increase in available judicial manpower will permit the court to grant more oral arguments, which have been woefully low for several years. Just nine years ago, the court granted oral argument more than 20% of the time – still low in comparison with the other courts listed, but well above what we’ve seen lately. It’s time to return to a more interactive form of appellate advocacy and decisionmaking.