The June ABA Journal cover story focuses on the confirmation “logjam” that has left four vacancies on the U.S. Court of Appeals for the Fourth Circuit — three of which are classified as “judicial emergencies” and one of which has been open for almost 15 years. (There were five vacancies when the article went to press, but Steven Agee was recently confirmed –the first confirmation to the Fourth Circuit since 2003.) Given there are 15 seats on the Fourth Circuit, the court is operating at less than 75 percent strength.
As the article makes clear, Senators from both parties have contributed to the obstruction of fourth Circuit nominees for some time. Senator Jesse Helms, in particular, kept one North Carolina seat open for over six years during the Clinton Administration because Senate Democrats had refused to confirm his protege Terrence Boyle to the court when nominated by the first President Bush. Senator John Edwards returned the favor when President Bush was elected, blocking Boyle’s confirmation as payback. And since then things have only gotten worse. The political fights over judicial nominations have steadily escalated over the past twenty years, and there is no sign it will let up soon.
The reason the nomination logjam has lasted this long is that judicial retirements have turned what was once the nation’s most reliably conservative appellate court into one split evenly—between judges appointed by Democratic presidents and those appointed by Republicans.
With the circuit’s ideological direction hanging in the balance, there’s been near-paralysis in Washington. The president has nominated reliably conservative lawyers to fill most of the vacancies, and the Democrat-controlled Senate has failed to act on most of the nominations. Meanwhile, the work of the circuit grinds on, with fewer and fewer judges to shoulder the burden.
Since Democratic Party leaders are feeling confident about their prospects for retaking the White House this fall, chances that any nominees beyond Agee will be confirmed before Bush leaves office in January range from slim to none, most experts say. And if the next president is a Democrat, his or her nominees could remake the 4th Circuit into a more moderate appeals court for a generation or more.
The article also reports that the Fourth Circuit has managed to operate short-handed quite well, at least thus far.
Despite the judicial shortage, the 4th circuit continues to dispose of cases quicker than almost any other circuit. But it does so while granting oral argument in fewer cases than its counterparts, and by issuing fewer substantive opinions explaining its decisions.
In 2006, the 4th had an average disposition time per appeal of 91⁄2 months, which tied the 11th Circuit as the quickest in the nation. The 9th Circuit had the slowest, at nearly 16 months. The national average was slightly longer than 12 months.
Judges in the 4th Circuit also consistently rank as among the hardest-working in the federal appeals courts. In fiscal year 2006, 679 appeals per active judge were terminated on the merits. Only the Atlanta-based 11th Circuit, with 877, and the New Orleans-based 5th Circuit, with 836, ranked higher. The D.C. Circuit had the fewest, at 173. The national average was 539.
But the 4th Circuit granted oral argument in less than 12 percent of its cases in 2006, far and away the smallest percentage of any circuit in the country. The average for all circuits was nearly 26 percent. That same year, the circuit also issued the lowest percentage of published opinions, at just over 6 percent. The average for all circuits was just under 16 percent.
Chief Judge Karen J. Williams, a 1992 appointee of the first President Bush, says the court is making the best of a bad situation.
The circuit has been able to stay current with its workload so far without suffering any loss in quality—in part by relying on its senior judges, and by inviting trial judges in the 4th Circuit and senior judges from other circuits to sit by designation, she says.
But she also says it won’t be able to do so indefinitely. “While we can continue to get our work done in a timely manner for the near future, over time the vacancies on our court, if not filled, may begin to have an adverse effect,” she says.