4th Circuit's reputation is polite, conservative

Bush administration steers sensitive cases to friendly panel of judges

November 18, 2003|By Laura Sullivan | Laura Sullivan,SUN NATIONAL STAFF

RICHMOND, Va. - In the courthouse of the U.S. Court of Appeals for the 4th Circuit, Southern manners are everywhere evident - in the judges' polite diction and in their stern admonishments when lawyers, often from Baltimore, come to court too casually dressed.

After oral arguments, the judges of this circuit, unlike those elsewhere, descend from the bench to shake each litigant's hand.

Yet the courtesy and civility belie what has become the most aggressively conservative federal circuit, a benchmark for jurisprudence derived from the right and an arbiter of nearly all the Bush administration's terrorism cases.

Now, with President Bush's nomination of a conservative Virginian, Claude A. Allen, to fill a seat that traditionally has gone to a Marylander, this court has become a focal point of Bush's bid to reshape the judiciary.

Allen's prospects for having the Senate vote on his nomination this year faded yesterday after the Judiciary Committee put off its vote till next week at the earliest. Congress is set to adjourn Friday for the year, though that deadline could slip.

Maryland's two Democratic senators, Barbara A. Mikulski and Paul S. Sarbanes, have waged intense resistance to Allen's nomination. In part, their opposition reflects a matter of state prerogatives: They say this vacancy on the 15-seat court rightfully belongs to Maryland.

But that is not the only issue. The two senators want a moderate, if not liberal, judge, rather than a conservative like Allen to fill the seat held by Francis D. Murnaghan Jr. of Baltimore, a liberal, who died in 2000. At stake is whether the most conservative appellate court is to become even more conservative.

Conservatives herald the Fourth Circuit, which handles appeals from Maryland to South Carolina, as a model of how difficult social and legal issues should be settled. They see a panel of judges with the courage to render proper rulings without regard for their popularity.

Many liberals, though, see the Fourth Circuit as akin to the administration's rubber stamp. It is, they assert, a court that tends to side with government against the individual and business against the employee and to embrace a hard line on terror suspects and civil rights.

The Fourth Circuit began attracting attention in the 1990s when it tried to overturn Miranda, the landmark 1966 Supreme Court ruling that requires the police to inform criminal suspects of their right to remain silent and to consult a lawyer.

In recent years it ruled that the Virginia Military Institute could remain all-male, struck down the Violence Against Women Act, said the Food and Drug Administration could not regulate nicotine as a drug, upheld the presence of the Confederate flag on some Virginia license plates and has agreed to hear fewer death penalty appeals than most other circuits.

"If you can stack the courts of appeals, you're going to get hundreds of decisions that come out not only in a conservative fashion but a highly doctrinaire fashion," said Michael Green-berger, a University of Maryland law professor who served in the Clinton Justice Department.

"The presidency, the House of Representatives, the Senate and now the courts - never in American political history has it been the case that all four major powers of government are aligned in a doctrinaire position," Greenberger said.

Over the past century, as the 13 federal appellate courts took on larger and more complex caseloads, they have become battlegrounds of social reform. In the 1960s and '70s, as Congress and the White House watched from the sidelines, it was the left-leaning appellate courts that took the first bold steps to dismantle McCarthyism and desegregate public schools.

Today, the appellate courts are overwhelmingly conservative - a trend that reflects the many judicial choices of the Reagan and first Bush administrations - and have, for example, sided with the government on nearly every terrorism-related case.

From Michigan to Virginia, the courts have ruled against the rights of enemy combatants, detainees in Guantanamo Bay and immigrants picked up and held, sometimes for a year, in sweeps after Sept. 11. The D.C. appeals court supported the government's stance that it does not have to reveal the identity of 700 people it picked up on immigration violations.

But beyond the terrorism cases, the appellate courts - the last stop before the Supreme Court - decide most of the country's legal and social battles. The Supreme Court hears fewer than 100 cases a year. The appeals courts constitute the final word on more than 20,000 cases, from death penalty appeals to cases involving workers rights, environmental pollution, state's rights and civil reform.

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