Liberal Shift

April 20, 2009|By LAWRENCE HURLEY

For decades, the final word in federal cases originating in Maryland has come from an anti-defendant and pro-business appeals court dominated by Republican-appointed judges. The Richmond, Va.-based 4th U.S. Circuit Court of Appeals is so conservative that even the rightward-leaning U.S. Supreme Court has overruled it in some major cases, most recently over the rights of terrorism detainees.

But President Barack Obama is not wasting any time in shifting the court in a more liberal direction. On April 2, Mr. Obama nominated Baltimore-based U.S. District Judge Andre M. Davis - whom President Bill Clinton tried to nominate to the court almost a decade ago - to fill one of four vacant seats on the court, which has 15 judges when at full strength. His likely confirmation means that Republican and Democratic appointees to the court will be deadlocked at six apiece, with three other vacancies for Mr. Obama to fill.

By the end of Mr. Obama's first term in office, the court could have a drastically different outlook on a whole range of legal issues.

The 4th Circuit - which also hears federal appeals from South Carolina, North Carolina, West Virginia and Virginia - has long been regarded as the most conservative federal appeals court in the nation, as illustrated by some of its recent decisions.

In 2003, the court held that Yaser Esam Hamdi, a U.S. citizen detained as an enemy combatant, could be held without trial. A year later, the Supreme Court reversed that decision.

Clearly not learning its lesson, the 4th Circuit ruled five years later that Qatari citizen Ali al-Marri, a legal resident in the United States, could also be held indefinitely. The Supreme Court was due to hear arguments in that case this month, but the Obama administration decided to move Mr. al-Marri into the civil justice system instead.

The court is known generally as tough on criminal defendants. A majority ruled in 2006, for example, that a Virginia death row inmate, Percy Levar Walton, could be executed even though experts said he was mentally retarded.

The court is also perceived as pro-business. Just last month, in a credit card arbitration case before the Supreme Court, the justices ruled in favor of Maryland resident Betty Vaden. The 4th Circuit had found in favor of the bank.

As for civil rights, the Leadership Conference on Civil Rights complained last year that despite having the largest population of African-Americans of any federal circuit, the 4th Circuit has "become known for its hostility" toward plaintiffs.

President Obama has made it clear that he wants to nominate judges that share his liberal interpretation of the law. Judges should have "the ability to empathize and walk in someone's shoes," as White House Press Secretary Robert Gibbs put it at a March briefing.

That stands in stark contrast to what Mr. Obama's predecessor, George W. Bush, was looking for. Mr. Bush noted in an October speech that "judges on the federal bench must exercise their power prudently, cautiously, or some might even say conservatively."

As Mr. Bush found out, however, presidents do not always prevail when it comes to judicial nominations. Senators usually have a major say in nominees who come from their home states, and they can hold up nominations they don't like. In that respect, Mr. Obama is in a strong position. Virginia now has two Democratic senators, Mark Warner and Jim Webb, where it had none before the 2006 elections. Last year, Democrats also picked up one seat in North Carolina.

Nevertheless, Mr. Obama still faces some obstacles. Although one of the remaining nominees will likely come from Virginia, the other two are expected to be from the Carolinas. That means the White House will have to negotiate with GOP senators in those states. Nominees for those positions will still likely be Democrats, but they will probably be moderates who might not tilt the court too far to the left.

President Obama clearly has the chance to put his imprint on the 4th Circuit - but he won't get it all his own way.

Lawrence Hurley covers the U.S. Supreme Court for the Los Angeles Daily Journal. His e-mail islawrence_hurley@dailyjourna

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