A Court in Need

Thursday, December 27, 2007

NO FEDERAL appeals court is more in need of help than the U.S. Court of Appeals for the 4th Circuit. The court hears cases from federal trial courts in Maryland, Virginia, West Virginia and the Carolinas, and it handles a disproportionate share of important appeals in terrorism cases. When fully staffed, the court has 15 active judges; currently, it has five open seats. Of these vacancies, three are considered judicial emergencies because the seats have been open for at least 18 months.

President Bush is largely responsible for the dire straits in which the court finds itself. Although he has made nominations for four of the five vacancies, he often has done so years after the slots became open. For example, only in July did Mr. Bush nominate Robert J. Conrad Jr. for a vacancy created in 1994. Mr. Bush cannot be held accountable for the first six years of the vacancy, but he is responsible for past seven years. Mr. Bush also tapped Maryland U.S. Attorney Rod J. Rosenstein only last month for an opening that's existed since 2000.

When the president has acted expeditiously, he has too often done so in a perversely partisan manner that undercuts his nominees' prospects for confirmation. In September, Mr. Bush chose Virginia lawyer E. Duncan Getchell Jr. for a vacancy created in July. The nomination was speedy enough, but it was a poke in the eye to Virginia Sens. John W. Warner (R) and James Webb (D), who had vetted roughly a dozen candidates and forwarded to the president the names of the five they recommended for the position. Mr. Getchell was not on the bipartisan Warner-Webb list.

So Mr. Bush has little basis to complain about the rate of confirmation for his nominees. Nevertheless, the Senate should act in good faith to fill vacancies -- not as a favor to the president but out of respect for the residents, businesses, defendants and victims of crime in the region the 4th Circuit covers. Two nominees -- Mr. Conrad and Steve A. Matthews -- should receive confirmation hearings as soon as possible. To its credit, the White House has moved quickly to provide the Senate Judiciary Committee most of the paperwork and background information needed to evaluate them.

The White House should also work diligently to get all of Mr. Rosenstein's information to the Judiciary Committee. A talented and widely respected lawyer, Mr. Rosenstein initially drew criticism from Maryland's Democratic senators, Barbara A. Mikulski and Benjamin L. Cardin, who argued that Mr. Rosenstein lacks the "Maryland roots" they want for the 4th Circuit seat. Mr. Rosenstein, in fact, has substantial work experience in Maryland and has lived in Bethesda for 10 years.

The senators' position may be due in part to Mr. Bush's disregard for their suggestion that he look elsewhere for a nominee. No senator takes kindly to being ignored, and a president is foolish to ignore home-state senators who have the power to block a confirmation hearing. But Ms. Mikulski and Mr. Cardin should reconsider. It would be a shame if a strong nominee such as Mr. Rosenstein, who wins plaudits from both sides of the aisle, did not have the chance to prove himself.

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