Page 2 of 2   <      

Vacancies Whittle Away Right's Hold On Key Court

Motz then authored a forceful dissent in which she said the "breathtaking" ruling had been a "rubberstamp" of Bush's excessive claim of presidential power. "The Executive branch must be subjected to checks on its power if individual liberties are to be preserved," she wrote.

In June, in the case of Qatari national Ali Saleh Kahlah al-Marri, also designated an enemy combatant, Motz applied those checks. She ruled that Bush cannot indefinitely imprison the U.S. resident on suspicion alone and ordered the government to charge him with terrorist crimes in a civilian court or release him.

"The president cannot eliminate constitutional protections with the stroke of a pen," the decision said. The 2 to 1 ruling was joined by Judge Roger L. Gregory, another Democratic appointee. A Republican appointee dissented.

The administration has said it plans to ask the entire court to rehear the case. But that would require six votes. With only five Republican appointees remaining, Motz's ruling might stand.

That scenario -- more panels controlled by Democratic judges, who can then prevent their decisions from being overturned -- is expected to happen more frequently. "It becomes almost impossible for the remaining conservatives on the court to do anything about liberal panel decisions," Hellman said.

Court observers also pointed to several rulings this year in which majority-Democrat-appointed panels overruled lower courts in favor of plaintiffs and against law enforcement. One such decision reinstated a lawsuit filed against a Prince George's County police officer by a man who said he had been wrongfully jailed for 19 days on suspicion of stealing a lawn mower.

Until recently, the 4th Circuit was known as a conservative stronghold that tended to defer to law enforcement and rule against many plaintiffs. Some of the court'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 so-called Miranda rights.

The court's conservative majority included some of the nation's most prominent judges, including J. Michael Luttig and J. Harvie Wilkinson III. But Luttig resigned in May 2006 to take a top corporate job at Boeing Co. Bush has nominated no one to replace him.

Chief Judge William W. Wilkins Jr., a Reagan appointee and the first chairman of the U.S. Sentencing Commission, announced in December that he would take senior status July 1. Despite the advance warning, the administration has nominated no one to replace him. Senior judges receive full pay and hear cases but can take a reduced workload and are not considered active members of the court.

Another vacancy has lingered since 1994, when Judge J. Dickson Phillips Jr. took senior status. Bush's nominee, U.S. District Judge Terrence W. Boyle Jr., was withdrawn this year. On July 17, the president nominated Robert J. Conrad Jr., a federal judge in North Carolina.

In 2000, Judge Francis D. Murnaghan Jr. died. Bush nominated Virginia conservative Claude A. Allen in 2003, but Democrats blocked him. Allen later resigned as Bush's top domestic policy adviser and pleaded guilty to shoplifting. Bush has not nominated anyone else for that vacancy.

The administration also had reason to anticipate the fifth vacancy. Widener had announced that he would take senior status when his successor was confirmed. But Bush's nominee, Pentagon general counsel William J. Haynes II, drew strong opposition in the Senate and was withdrawn this year. Sources familiar with the court's operations said Widener is ill and simply couldn't wait any longer.

<       2

© 2007 The Washington Post Company