[Posted July 19, 2007] Just yesterday, I noted here two recent developments in the appellate judiciary. Judge Benton of the Court of Appeals of Virginia has announced his retirement, effective in October; and the President has nominated North Carolina US District Judge Robert J. Conrad, Jr. to the Fourth Circuit.

This morning, abruptly, the Fourth Circuit’s already depleted corps of jurists became even more understaffed. Judge H. Emory Widener, Jr. has accelerated the date of his retirement unto, . . . well, today. Judge Widener had announced some time ago that he was ready to take senior status, but would hold off until his successor could be appointed, presumably (and laudably) to prevent a staffing shortage at the court. That was six years ago, and no one can blame the judge for deciding that that’s enough waiting time. The judge will take senior status immediately, meaning that he will continue to hear cases, but can pretty much dictate his own caseload.

At the end of last year, when I prepared my essay, “The Top Ten Appellate Stories of 2006” (available here), I listed the shortage of judges at the Fourth as the #1 story. At that point, my title, “A third of the Fourth is missing,” was technically premature, since Judge Widener was still active. As of this morning, it’s official; the Fourth Circuit is understaffed by fully 33%.

This, in case it isn’t obvious, is a decidedly unhealthy trend. There is plenty of blame to go around for those who seek to assign blame; one common theme in some corners is that the President has assured a contentious and stalemated judicial appointment process by nominating only doctrinaire candidates that have been unpalatable to a large number of Democratic senators. With the change in the makeup of the Senate after the 2006 elections, and especially with many Democratic political strategists smelling blood in the electoral water as the 2008 presidential election nears, one wonders whether the long impasse will continue.

It must not. I always refrain from taking sides in political issues here — after all, this web site is devoted to the emphatically apolitical process of following and reporting appellate developments; I have never espoused a particular political view in any of my writings. This issue, however, is so vital to the operation of our judicial system, that I would do a disservice to my readers to remain silent. There are times, Alexander Solzhenitsyn tells us, when silence is a lie.

The President and the Senate have been playing a prolonged game of chicken for several years now. The citizens (and, we should not forget, the active judges) of the Fourth Circuit are the ones who are getting crushed by this intransigence. As long as we allow them to do that, and enable them to stubbornly act to the detriment of those they were elected to serve, in order to satisfy their legislative agendas, we will have to endure this worsening situation.

I am mindful of the importance of this process, specifically because of the life tenure of these judges. No senator should be asked to take just any judicial nominee, regardless of qualifications, simply because a vacancy exists. But equally, no President should stubbornly insist on nominating only candidates whom he perceives to be acceptable to the extreme wing of his political base. If the time comes when these politicians can agree on moderate candidates, then this impasse can end. But unless we, their ultimate bosses, make them do that, then it won’t.

Here is a link to the members of the Senate Judiciary Committee, with contact information for each senator only a click away. Two members of that committee — Senators Carden of Maryland and Graham of South Carolina — represent states within the reach of the Fourth Circuit. They conveniently come from different political parties. I invite you to contact them — I certainly will — and insist on their immediate cooperation in a process that affects us all. Virginia’s Senators Warner and Webb admirably cooperated recently in recommending the names of five Virginians to a seat on the same bench; these other senators can do the same thing.

Oh, and here’s one more hyperlink, so you can contact the other end of this intolerable logjam.