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Conservatives' Grip on Key Virginia Court Is at Risk

Wilkins, with former senator Strom Thurmond, will take senior status in July.
Wilkins, with former senator Strom Thurmond, will take senior status in July. (1992 U.s. Senate Photo Via Associated Press)

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By Jerry Markon and Michael D. Shear
Washington Post Staff Writers
Monday, December 18, 2006

A growing list of vacancies on the federal appeals court in Richmond is heightening concern among Republicans that one of the nation's most conservative and influential courts could soon come under moderate or even liberal control, Republicans and legal scholars say.

A number of prominent Republican appointees have left or announced plans to leave the U.S. Court of Appeals for the 4th Circuit, which has played a key role in terrorism cases and has long been known for forceful conservative rulings and judicial personalities.

Republican concerns also are fueled by the pending Democratic takeover of Congress, as several of President Bush's 4th Circuit nominees were already bottled up in the Senate when Republicans ran it. From the GOP's perspective, the situation now will worsen.

The 4th Circuit's rulings affect everyone who lives, works or owns a business in the area, which encompasses Maryland, Virginia, West Virginia and the Carolinas. The court's influence also has been widely felt nationally, and the emerging battle over it is part of a broader struggle for control of the federal judiciary.

"I think everyone is concerned because the 4th Circuit literally hangs in the balance here," said Jay Sekulow, chief counsel for the conservative American Center for Law and Justice, who has advised the White House on judicial nominees. "With the nature of the cases the court has been taking, especially on the terrorism issue, its direction is really critical."

Nan Aron, president of the liberal Alliance for Justice, said the new political landscape will force Bush to work closely with Democrats "to pick fair and open-minded judges who don't lean either to the right or the left" if he wants to get the administration's nominees confirmed. "If there were any way to appoint judges to move the 4th Circuit in a more moderate direction, that would be beneficial to both the circuit and to the country," she said.

The 15-member court has three vacancies, and a fourth judgeship will open in July. That would leave the bench with six Republican and five Democratic appointees by summer. In addition, one of those six Republican appointees has announced plans to take senior status as soon as a replacement can be confirmed. Senior judges receive full pay and hear cases but can take a reduced workload and are not considered active-service members of the court.

Some of the 4th Circuit's best-known rulings, upheld by the Supreme Court, include striking down a law allowing rape victims to sue their attackers in federal court and preventing the Food and Drug Administration from regulating tobacco.

In 1999, the 4th Circuit overturned the requirement that police read suspects their rights before interrogating them. The Supreme Court later reaffirmed the Miranda rights.

During the Bush administration, the 4th Circuit has been the court of choice on national security, issuing key rulings that backed the government on the detention of enemy combatants and the prosecution of Sept. 11, 2001, conspirator Zacarias Moussaoui. The court's conservative majority has included some of the nation's most prominent judges, including J. Michael Luttig and J. Harvie Wilkinson III.

Jan LaRue, chief counsel for Concerned Women for America, said she and other conservatives are disappointed with Bush and Senate Republicans for not pushing harder to fill the vacancies before losing control of the Senate.

"Now all they've done is managed to kick the can down the road, and we've lost the majority," said LaRue, whose group advocates for conservative jurists. "That circuit in the wrong hands could certainly move toward the center-left."


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