Vacancies Whittle Away Right's Hold On Key Court

By Jerry Markon
Washington Post Staff Writer
Wednesday, August 8, 2007

Four years ago, Judge Diana Gribbon Motz challenged the conservatives who dominated the federal appeals court in Richmond, urging her colleagues to reverse a decision backing the Bush administration's detention of a U.S. citizen as an "enemy combatant." She called the ruling unprecedented and "chilling."

Her arguments went nowhere.

In June, Motz, the leader of the court's moderate-to-liberal wing, gave her views the force of law, ruling against President Bush in another major terrorism case involving an enemy combatant. The administration might be unable to get the full court to overturn her ruling -- there aren't enough sympathetic judges left.

Motz's ascension illustrates a remarkable turnaround: The U.S. Court of Appeals for the 4th Circuit, long considered one of the nation's most conservative appellate courts, is shifting to a moderate direction with the balance up for grabs. A growing list of vacancies -- now five -- has left the court evenly divided between Republican and Democratic appointees.

With an election year approaching, experts predict the court will tilt decisively to the left if Democrats keep control of Congress and reclaim the White House.

"There is a very good chance that this court will be solidly Democratic for many, many years," said Arthur D. Hellman, a University of Pittsburgh law professor. He said the current 5-5 split -- which began July 17 when Judge H. Emory Widener Jr., a Republican appointee, took semi-retirement -- is "tremendously significant."

The battle over the 4th Circuit, part of the broader struggle for control of the federal judiciary, resonates nationwide because the court has played a key role in terrorism cases since the Sept. 11, 2001, attacks. Its rulings affect everyone who lives, works or owns a business in Maryland, Virginia, West Virginia and the Carolinas.

The 15-member court has lost several prominent Republican appointees. Two of Bush's nominees, bottled up in the Senate even when Republicans ran it, were withdrawn this year when Democrats took over. The president only recently submitted one additional nominee, triggering concern among some conservatives that an opportunity to keep control is being lost.

"The White House has not moved with an urgency that is warranted by the situation," said Charles J. Cooper, a Justice Department official in the Reagan administration, who called the 4th Circuit's vacancies "an absolute crisis." He said Senate Democrats also deserve blame for blocking Bush's earlier nominees.

Emily Lawrimore, a White House spokeswoman, said the administration "is actively working to identify high-quality candidates to fill all judicial vacancies. We look forward to announcing these nominees as soon as possible." Liberal groups said Bush can still shape the 4th Circuit, and they called on him to nominate consensus candidates likely to win Senate approval. "The president still holds most of the cards when it comes to judicial appointments," said Wade Henderson, president of the Leadership Conference on Civil Rights.

Whatever the outcome in the Senate, the growing list of vacancies has started affecting the court's decisions, legal observers say. The shift can be seen most prominently in two key terrorism cases. The 4th Circuit has been the administration's court of choice on national security, issuing key rulings that backed, for example, the prosecution of Sept. 11 conspirator Zacarias Moussaoui.

In 2003, a three-judge panel supported Bush's detention of "enemy combatant" Yaser Esam Hamdi, a U.S. citizen captured with Taliban soldiers in Afghanistan who, at that point, had not seen a lawyer. Motz, a former assistant state attorney general in Maryland who was appointed to the 4th Circuit by President Bill Clinton in 1994, tried to get the case reheard by the full court. By an 8 to 4 vote, her colleagues refused.

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