[StBernard] Obama begins to overhaul key US appeals court

[Westley Annis]

Obama begins to overhaul key US appeals court
(AP) - 5 hours ago

RICHMOND, Va. - President Barack Obama has begun reshaping the nation's most
conservative federal appeals court, one that has handled many high-profile
terrorism and detainee cases and generally supported the anti-terrorism
initiatives of former President George W. Bush.

Five of the nation's 20 open circuit judgeships belong to the Richmond,
Va.-based 4th U.S. Circuit Court of Appeals. The vacancies - fully a third
of the court's 15 judgeships - make the 4th Circuit more ripe than any other
federal appeals panel for a fundamental shift in ideology, and greatly
increase the odds that the court will undo some of its recent rulings.

Obama started his makeover of the court with the nominations of U.S.
District Judge Andre Davis of Maryland, whose nomination to the circuit
bench by President Bill Clinton died in the Senate, and Virginia Supreme
Court Justice Barbara Keenan. Should they win confirmation, Democratic
appointees will outnumber Republicans 7-5 on the 4th Circuit, with three
more vacancies.

Nationally, there are 75 U.S. District Court positions open and 20 vacancies
on the federal appeals courts. Obama has made nominations for seven of those
appeals court openings, including for two vacancies on the
Philadelphia-based 3rd Circuit, also evenly split for the moment between
Democratic and Republican appointees.

"Down the road, if indeed what we think will happen happens, it may end up
being more than one or two votes in the more liberal vein," said Barbara A.
Perry, a government professor at Sweet Briar College in Sweet Briar, Va.,
who has written six books about the U.S. Supreme Court.

Many detainee and terrorism cases come to the 4th, which handles federal
appeals in Virginia, West Virginia, Maryland, North Carolina and South
Carolina, because national security facilities are concentrated in northern
Virginia and because federal prosecutors there have had success getting jury
convictions in such trials.

Among the court's high-profile cases was that of Yaser Esam Hamdi, an
American-born man captured during the fighting in Afghanistan and held in a
military jail. In siding with the Bush administration, the 4th Circuit ruled
the government has wide latitude to detain people caught fighting against
the U.S. on foreign soil during wartime.

The court also has been tough in death-row cases and has backed abortion
restrictions. The 4th has had the lowest capital punishment reversal rate of
all the federal circuits and has upheld laws requiring parental consent for
minors' abortions and banning a late-term abortion procedure.

But as more conservative jurists have departed, the court has become more
ideologically balanced. The most recent loss was Judge Karen Williams, a
1992 appointee of President George H.W. Bush who stepped down in July after
she was diagnosed with early onset Alzheimer's disease.

Just two weeks earlier, Williams had voted with the majority in a 6-5
decision upholding Virginia's law banning a procedure that abortion
opponents call "partial-birth abortion."

Occasionally, the court's conservatism has pleased the American Civil
Liberties Union.

"While we've had some setbacks, our record on free speech and religious
liberty cases before the 4th Circuit is actually pretty good," said Kent
Willis, executive director of the Virginia ACLU. "The court's rulings on
other important ACLU issues, like gender equality and the rights of
defendants in criminal trials, however, is very disappointing."

For example, the court in 1999 ruled that suspects in federal prosecutions
do not necessarily have to be informed of their rights when they are
arrested. That ruling, undermining the Supreme Court's landmark 1966 Miranda
decision, was later reversed by the high court.

Last year, the 4th Circuit also upheld a Virginia law that inmates do not
have the same rights as other citizens to demand public records under the
state's Freedom of Information Act.

It's impossible to say whether a majority of Democratic appointees would
rule differently in any specific case. But Perry, the professor, said
research suggests that party affiliation can't be overlooked. Studies have
shown that about 80 percent of decisions made by a Supreme Court justice are
consistent with the views of the president who appointed him or her, she
said.

"I'm not aware of any similar study for the circuits, but I wouldn't be
surprised if it's about the same," Perry said. "Most presidents probably get
what they hope for."

It helps if those presidents have a friendly Senate to confirm the
appointments, which has not always been the case. That's how the 4th Circuit
ended up with a third of its 15 authorized judgeships vacant - more openings
than any other circuit in the country. Several appointees dating back to the
Clinton administration have been blocked, and four of the vacancies have
been labeled "judicial emergencies" by the federal judiciary.

Bush had to withdraw two nominations when it became clear a new Democratic
majority in the Senate would not go along. He finally managed to fill one
slot last year as Steve Agee, a former Republican legislator and Virginia
Supreme Court justice, received bipartisan support and the blessing of Sen.
Jim Webb, D-Va.

With Democrats in control of the Senate and its Judiciary Committee, filling
the rest of the vacancies should be easier for Obama. That would be a relief
for the 4th Circuit's sitting judges, who rely on help from visiting or
semiretired judges to handle their caseload.

"As long as the Democrats hold the majority they have, it's just a matter of
time," said Colby May, senior counsel for the conservative National Center
for Law and Justice, "and 3 1/2 years is sufficient time."