Is the Fourth “Slipping Away”?

The Legal Times reports on the rapidly closing window for the Bush Administration to see more judicial nominations confirmed to the federal bench, particularly for seats on appellate courts.

“[Bush’s] opportunity to fill vacancies is shrinking, and he probably will be unable to make the kinds of nominations that he made prior to 2006,” says Michael Gerhardt, a law professor at the University of North Carolina.

Nowhere will that be more apparent than on the influential 4th Circuit. With four vacancies and a fifth judge waiting to be relieved before taking senior status, the balance of the appeals court, which has played a key role in terrorism cases and has long been a bastion of conservative rulings, could remain unstable.

Bush, who earlier in his presidency made judicial nominations a high priority, has turned strangely silent on the vacancies on the 4th Circuit. So far, the White House hasn’t named anyone to the court after withdrawing two of the president’s prior controversial picks. . . .

Filling the vacancies could mean more than simply easing the court’s workload. The court is currently split between six judges who were appointed by Republican presidents and five judges picked by Democrats. (The two sitting senior judges are also Republican appointees.) Allowing the open slots to fall to a potential Democratic president in the next term could shift the balance of power on a court famous for its conservative firepower.

The story also notes that it looks increasingly unlikely that the Senate will confirm Leslie Southwick to a seat on the U.S. Court of Appeals for the Fifth Circuit.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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