U.S. courts due for left turn with Obama

Changes likely in conservative 4th Circuit, which includes Md.

December 07, 2008|By Tricia Bishop | Tricia Bishop,tricia.bishop@baltsun.com

Barack Obama's presidency and his party's dominance in Congress could mean sweeping changes to the federal court system, which handles thousands of cases annually on issues ranging from civil rights to securities and banking regulation.

And the most drastic changes are likely to come in the nation's most conservative appeals court - the 4th Circuit, which oversees cases from Maryland and four other Mid-Atlantic states. Republican nominees hold a narrow 6-5 edge on the Richmond-based court, but there are already four vacancies and several others could open up during Obama's term.

Such change could have broad impact on national policy, considering the types of cases this circuit handles: those dealing with the war on terror and the many government agencies situated in the Maryland and Virginia suburbs, said Ilya Shapiro, a senior fellow at the Cato Institute, a libertarian think tank in Washington. The court also decides cases from West Virginia and the Carolinas.

"This is the circuit where Obama will have the fastest chance to have the greatest impact," Shapiro said.

Obama's impact on the federal courts in Maryland will be far-reaching, especially if he wins a second term, scholars said. By January 2016, all of the state's sitting U.S. District judges will become eligible for senior status - a sort of active retirement that requires them to vacate their seats if they accept it. One of the district judges, Peter J. Messitte, took senior status in September, leaving nine on the bench.

And Obama's administration is likely to remove U.S. Attorney Rod J. Rosenstein, who was appointed by George W. Bush, despite his widely praised record.

"That's the way the system works," said Stephen Sachs, a former Maryland U.S. attorney and state attorney general. New administrations typically come in and clean house, he said.

It happened to Sachs when Richard Nixon won the 1968 presidential election, and he expects it to happen to again next year. Rosenstein's four-year term ends in July, and while he told The Baltimore Sun that he's not looking for a new job, others in the legal community say offers have been pouring in.

Sachs has heard a handful of names being bandied about as possible U.S. attorney nominees, including Stuart O. Simms, who ran for Maryland attorney general in 2006, and former assistant U.S. Attorneys Gregg L. Bernstein and W. Warren Hamel, Sachs' personal favorite.

During presidential elections, the U.S. Supreme Court is often the focus of discussion concerning the federal judiciary's future, though very few cases actually make it to that level. The 13 federal appeals courts, meanwhile, resolve thousands of cases each year.

The 4th Circuit in particular has had a high-profile role, with the Bush administration sending terrorism cases its way, said Carl Tobias, a visiting professor at the University of Richmond School of Law who has a scholarly interest in the federal appeals courts.

The government brought the cases of John Walker Lindh, the American who fought with the Taliban in Afghanistan, and Zacarias Moussaoui, the French citizen accused of conspiring to kill Americans in the Sept. 11 attacks, under the 4th Circuit's purview specifically because of its perceived conservative bent, Tobias said.

The 4th Circuit earned its conservative reputation in the 1990s, when it nullified the Miranda ruling that requires the accused to be advised of their rights; the decision was overturned by the U.S. Supreme Court. More recently, it has ruled that the Virginia Military Institute could block women from enrolling, it voided the Violence Against Women Act, declared that the Food and Drug Administration could not regulate nicotine as a drug, and upheld the presence of the Confederate flag on some Virginia license plates. It has also agreed to hear fewer death penalty appeals than most other circuits.

Tobias, who wrote an op-ed article for The Baltimore Sun last month urging Obama to swiftly fill the vacant Maryland seat, is careful to say that he believes federal judges decide cases on the basis of law, and that conservative or liberal ideals shouldn't, and often don't, play a role. Still, conservatives have come to regard the 4th Circuit as a model, and liberals as something to be revamped - a rubber stamp for the Bush administration, Sachs said.

"The Obama victory I think, I feel strongly, is an opportunity to redress what I think has become a conservative balance," Sachs said.

But others fear that Obama will swing the pendulum too far.

"Those [4th Circuit] seats need to be filled; the courts are overrun," said Mike Johnson, senior legal counsel for the conservative Alliance Defense Fund. "But I would say we have some concern about who he has in mind."

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