A court uneven

October 03, 2002

PRESIDENTS HAVE almost always used their power to appoint federal judges to help burnish their political legacies. They stack the courts with like-minded jurists whose lifetime tenure far outstrips anyone's hold on the White House.

So it's no surprise that George W. Bush has seized his opportunity with great zeal. Time and again since Mr. Bush captured the White House in 2000, the Senate -- which must approve judicial appointments -- has been faced with nominees whose politics veer distinctly to the right, and whose judicial records often reflect that.

For the most part, that's the way things go, and there's not much point in continued Senate foot-dragging or obstinacy.

But one of Mr. Bush's nominations -- that of South Carolina District Judge Dennis Shedd to the 4th U.S. Circuit Court of Appeals, which covers Maryland and four other states -- goes beyond the acceptable boundaries for a president putting his political stamp on the judiciary.

Judge Shedd's appointment to the 4th Circuit would push the nation's most conservative appeals bench even further outside the legal mainstream for decades to come. It would dig more potholes along an already rocky legal road for minorities seeking redress for discrimination, women in search of the protection of long-established reproductive rights, workers whose employers trample labor laws and even criminal suspects who just want to be read their rights before being carted off to jail.

As much as presidents, being politicians, have the right to pick judicial nominees they agree with, don't they also have a responsibility, as leaders, to secure at least a modicum of judicial balance?

The Senate Judiciary Committee should make that point to Mr. Bush next Tuesday, when it is scheduled to vote on Judge Shedd's nomination. A firm "no" would suggest to the president that the 4th Circuit needs more moderates, not hard-liners.

The 4th Circuit has been described by some legal scholars as a vanguard for issues that conservatives would like to see the Supreme Court revisit. It consistently issues opinions that conflict with prevailing law among the other appeals circuits, forcing the high court to weigh in.

The 4th Circuit tried to replace Miranda vs. Arizona -- which requires that criminals be read their rights before being arrested -- with a federal statute that provided less protection. (The Supreme Court overturned that decision.)

The bench has repeatedly tried to place restrictive limits on a woman's right to terminate a pregnancy. It was one of the only benches to uphold a state ban on late-term abortions.

Civil rights cases strain to find sympathetic ears with the 4th Circuit, even in the most blatant cases. Big tobacco found friends on the 4th Circuit willing to challenge the Food and Drug Administration's attempts to regulate the industry. And the 4th Circuit has been called the "black hole" of death penalty cases, based on its near-universal practice of affirming even the most questionable capital convictions.

Judge Shedd would only solidify the court's lopsided foundation.

In 11 years as a judge, he has yet to rule in favor of a plaintiff in an employment discrimination case. Judge Shedd has found for the plaintiff only once in sexual harassment cases in which summary judgment (a judge-issued verdict before trial) was requested.

Judge Shedd's decisions have helped make it easier for states to dodge compliance with the Family and Medical Leave Act. They have consistently sided with defendants in personal injury, product liability and malpractice cases. (In one instance, he dismissed a lawsuit against the South Carolina Department of Social Services by a woman whose child died in foster care.)

Judge Shedd is a conservative, like the majority of the justices on the 4th Circuit -- which, in theory, shouldn't matter.

But in practice, these judges' politics not only influence but seem to guide their decisions. As much as any bench in the country, this circuit needs a moderating influence to balance the will of its majority.

And it's not as though there haven't been chances to add moderation to the bench.

Five times since 1995, former President Bill Clinton nominated middle-of-the-road jurists to the 4th Circuit, seeking a better balance. But the Senate Judiciary Committee -- then controlled by Republicans and notably North Carolina Sen. Jesse Helms -- wouldn't even grant any of those nominees a hearing.

Now, the Senate is close to rubber-stamping Judge Shedd, whose views and judicial record are decidedly more tainted with political considerations than any of the Clinton nominees. How much of a conservative majority would be enough for Mr. Bush? Isn't it time for some parity?

Maryland would also be a big loser if Judge Shedd were confirmed. While there are only two justices on the 4th Circuit from our state, Judge Shedd's appointment would bring South Carolina's total to five -- fully a third of the entire court. And the last nominee Mr. Bush considered from Maryland was actually a D.C. lawyer who didn't even belong to this state's bar.

No one expects Mr. Bush to nominate Democrats to the bench. But nominees such as Judge Shedd make the judicial appointment process more nakedly political than it needs to be -- and they tarnish, rather than polish, the legacy Mr. Bush is hoping to build.

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