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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 Two of Bush's nominees, bottled up in the Senate even when Republicans ran it, were withdrawn this year when Democrats took over.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.

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.

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