Wednesday, August 8, 2007

Big Small Story

A sleeper story in today's WaPo: retirements of judges has left the U.S. Court of Appeals for the Fourth Circuit evenly split between Democratic and Republican appointees.

Finished yawning yet? It's actually quite important. The Fourth Circuit (covering Maryland, Virginia, West Virginia, and the Carolinas) is the nation's most conservative court on many issues -- more conservative than the Supreme Court. The government takes advantage of the court in many ways, such as sneaking terror detainees into the court's jurisdiction so that this conservative court will be the one to rule on the detention's lawfulness. With the even split suggesting that the court may not be so conservative any more, the government's maneuvering room is reduced.

I remember arguing before the Fourth Circuit once in a pro bono case I took after I started teaching. The case was about state sovereign immunity (the doctrine that you can't sue a state government unless it consents to the suit), which is a big conservative issue. The Fourth Circuit was probably the least friendly place in the whole country to litigate the issue. But it was a close case and a lot depended on which three judges happened to be on the panel (three judges are drawn at random from the dozen or so judges on the full court). An old friend of mine who clerked on the court told me, "you'd better pray you don't get Wilkinson or Luttig." Naturally, I got both of them. It wasn't pretty.

Surprisingly, President Bush hasn't even nominated judges for the five vacant spots on the court. The administration claims to be "actively working" on finding nominees. I've always said that when the White House and the Senate are controlled by different parties, the solution is moderate, compromise candidates for judgeships. But this administration rarely seems interested in compromise. Well, if the result is no appointments until the next president, I won't shed any tears.


Anonymous said...

Question: How long on average does it take a suit filed in a state under the 4th circuit, say Virginia, to make it to the 4th Circuit. I mean, if someone filed a hypothetical soveriegn immunity case today, lost at the lower levels and appealed, how long on average would it take for that case to come before the 4th circuit?

Anonymous said...

Sleeper story? It's on the front page!

Jon Siegel said...

I just checked the last dozen or so decisions issued by the 4th Circuit and from the date of the district court decision to the date of the court of appeals decision ranged from about 8 months to about 2 years.

And I just mean "sleeper" in the sense that I'm guessing a lot of people wouldn't find the story very interesting.