Losing the Fourth

For quite some time, the U.S. court of Appeals for the Fourth Circuit was considered to be the most conservative of federal appellate courts (with the possible exception of the Fifth).  that may be changing, however, due to the retirement of several conservative judges and the failure of the Bush Administration to replace them.  Some of the Administration’s nominees stalled in the Senate (Boyle, Haynes).  In other cases, the administration did not move quickly to select nominees for new and impending vacancies.  As today’s Washington Post reports,

The 15-member court has three vacancies, and a fourth judgeship will open in July. That would leave the bench with six Republican and five Democratic appointees by summer. In addition, one of those six Republican appointees has announced plans to take senior status as soon as a replacement can be confirmed.

This is a growing concern to some Republicans,  in no small part because the Fourth Circuit plays such a prominent role in national security and terrorism-related cases.  

Jan LaRue, chief counsel for Concerned Women for America, said she and other conservatives are disappointed with Bush and Senate Republicans for not pushing harder to fill the vacancies before losing control of the Senate.

“Now all they’ve done is managed to kick the can down the road, and we’ve lost the majority,” said LaRue, whose group advocates for conservative jurists. “That circuit in the wrong hands could certainly move toward the center-left.”

While the White House would like to point the finger at Senate Democrats (and some Republicans) who slowed the confirmation of qualified administration nominees, theadministration itself deserves a a substantial part of the blame.  In the past two years the White House has dramatically slowed down the selection of judicial nominees.  If the administration were on top of things, Haynes and Boyle would not be the only two nominees for the Fourth, and there would be three more names waiting in the wings.

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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