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By Pamela A. MacLean
The National Law Journal
02-12-2007

Having thrown in the towel on ever winning confirmation of Terrence W. Boyle and William J. Haynes II to the 4th U.S. Circuit Court of Appeals, President George W. Bush could find five vacancies on the 15-judge court by July 1 and a Democratic Senate slow to fill them.

The 4th Circuit, considered the most conservative circuit in the country, currently has three vacancies and will add another when Chief Judge William W. Wilkins Jr. takes senior status on July 1, opening a new seat.

In addition, a fifth judge, H. Emory Widener Jr., has indicated he will step down when a new appointee is approved.

The 4th Circuit vacancies exemplify the long-running political tug-of-war over judicial nominees, with the oldest judicial vacancy in the nation, dating back 13 years, to 1994, for the seat of Judge J. Dickson Phillips.

Then-Senator Jesse Helms, R-N.C., refused to approve two nominees of President Bill Clinton, in 1995 and 1999, to Phillips' seat.

Helms had lobbied in 1991 to get Boyle, his former Senate staffer, nominated by President George H.W. Bush in 1991, but Boyle's name languished without confirmation until Clinton took office. Helms then blocked Clinton's effort to give the spot to potentially the first black judge on the 4th Circuit with the nomination of James Beaty in 1995 and, later, James Wynn in 1999.

In 2000, Clinton did get an African-American, Roger Gregory, on the court through a recess appointment to a newly created seat. Meanwhile, Phillips' seat remained open. Judge Francis Murnaghan died in 2000, opening a second spot, and Judge Michael Luttig resigned for private practice in May 2006 after Bush passed him over for elevation to the U.S. Supreme Court.

Widener said he will take senior status when a replacement is found, and Wilkins will create a fifth opening midyear. Bush tried and failed to win confirmation one last time for Haynes and Boyle before the Democrats took over in January.

The Philadelphia-based 3rd Circuit trails the neighboring 4th Circuit with three appellate vacancies on a court with 14 judgeships, but those openings have come more recently. The president elevated Samuel A. Alito Jr. to the Supreme Court in January 2006, Judge Franklin Van Antwerpen took senior status three months ago and Judge Richard Nygaard became a senior judge in July 2005.

In all, the Administrative Office of the U.S. Courts indicates that of the 179 federal appellate judgeships nationally, 19 are currently vacant or will be shortly because of judges who have indicated that they will be moving to senior status.

Carl Tobias, a professor at the University of Richmond School of Law in Virginia who follows the 4th Circuit, said, "There has been so much payback, and back-and-forth with nominees, you wonder if there can be a truce.

"In some ways, Bush may have to start over in terms of nominating people," Tobias said. "The big question is whether the president will consult [with senators] and how much," he said.

If Bush has to temper the conservative cast of his circuit nominees to appease Democrats, it could have a significant impact on the court, according to Michael Gerhardt, a professor at the University of North Carolina School of Law. "But he has had trouble doing that in the past. I don't think the president wants the 4th Circuit to lose its conservative dominance," Gerhardt said.

"We're not talking about it becoming a liberal court, but whether it is less ideologically conservative -- yes, five openings could moderate the court," said William Marshall, also a law professor at the University of North Carolina.

Wilkins, the 4th Circuit chief judge, said he decided to announce early his decision to open a seat in July to give the president time to appoint a successor. "If you wait until an election year, it becomes unsure," he said.

Wilkins said he does not expect the openings for one-third of the appeals court will delay cases.

The court does not currently have a significant backlog, although he warned it could grow if the court's judgeships remain vacant for any length of time. "We need to get these filled," Wilkins said.