FACT SHEET: Tipping the Balance on the Fourth Circuit

The United States Court of Appeals for the Fourth Circuit

For years, the Fourth Circuit has been viewed by ultraconservatives as the model of success for their courtpacking plan.  It has handed down decision after decision advancing the aims of movement conservatism.  Now, a series of departures from the bench has resulted in a more moderate court. In response, President Bush and his Senate allies are scrambling to fill five vacancies in a nakedly political attempt to reassert conservative dominance before a new administration enters the White House.  These nominations could tilt the balance of the court for decades to come. 

The Fourth Circuit Under Conservative Control [*] 

Harmful Decisions Undermining Basic Rights

• During its conservative heyday, the Fourth Circuit issued opinions striking down portions of the Violence Against Women Act and the Clean Water Act; upholding Virginia’s mandatory parental contact statute for abortions; ruling in favor of Big Tobacco that the FDA lacks the authority to regulate nicotine as a drug; and invalidating a federal statute that prohibited states from selling lists of licensed drivers for a profit.  It even went so far as to declare that federal law enforcement officials do not have to follow the landmark decision in Miranda v. Arizona, requiring police officers to inform the people they arrest of some of their basic constitutional rights.
   
• A study conducted by Prof. James Liebman of Columbia University Law School during the height of this circuit’s conservative dominance revealed that federal courts nationwide granted new hearings for death row inmates in 40% of habeas corpus cases compared to the less than 4% for the Fourth Circuit.

An Activist Approach

• According to a May 24, 1999, New York Times article, the Fourth Circuit was “the boldest conservative court in the nation” and earned the reputation of “reshap[ing] large areas of federal law and constitutional interpretation.” 
   
• The Fourth Circuit’s conservative majority made sweeping and activist efforts to favor corporate interests and expand governmental power.  Boalt Law School Professor Jesse Choper observed “they’ve gone out of their way to reach these decisions.”

Playing Fast and Loose with Procedure

• According to judges and former law clerks, the court’s conservative majority prevented the release of opinions it did not like.  University of Pittsburgh Law School Professor Arthur Hellman observed, “'If [the conservatives] see a panel decision they don’t like, they just take it en banc and reverse it.  No other circuit enforces majority rule the way the Fourth Circuit does. It’s gotten to the point that if there is a 2-to-1 liberal panel decision, you can predict with almost perfect certainty that it will go before the full court and be reversed.  Liberal panel decisions are not allowed to survive.”

The Fourth Circuit Today

A New Role

In the years since the September 11^th attacks, the Fourth Circuit has taken on a critical role in the American legal landscape because various important government offices – like the Pentagon and the CIA – are located within its jurisdiction.  The Fourth Circuit decides many cases involving national security, the war on terrorism, detention of individuals by the Defense Department and the conduct of the CIA. 

Two Noteworthy National Security Decisions

• Padilla v. Hanft [1]: Jose Padilla sought release from military custody in South Carolina by writ of habeas corpus.  A district court judge found that he was being held in violation of the Constitution and granted the writ.  A Fourth Circuit panel, led by archconservative Judge Luttig, reversed, finding that the president had unilateral authority to detain him indefinitely as an “enemy combatant,” even though he was a U.S. citizen arrested on U.S. soil.
   
• Al-Marri v. Wright [2]: After criminal charges against Mr. Al-Marri - a legal resident arrested on U.S. soil - were dismissed, he was held incommunicado for sixteen months by the military. He was unable to speak with his attorneys or family members.  His lawyers filed for a writ of habeas corpus, which was denied by a federal judge in South Carolina. A three-judge panel consisting of two circuit judges appointed by President Clinton and a district judge sitting by designation appointed by President Bush reversed this decision, issuing a 2-1 decision (the Bush appointed judge dissented) ordering that the military detention of Mr. Al-Marri must end. Within three months of its issuance, the Fourth Circuit relied once again on the use of en banc hearings to revisit this decision that was at odds with ultraconservative goals. At oral argument, only nine of ten judges were present: Bush II appointee Dennis Shedd did not participate.  Thus it remains possible that the full court will re-affirm the panel’s important ruling. 

A Right-Wing Priority

Conservatives have long had a special fondness for the Fourth Circuit, and given its unique caseload and reputation, they are especially wary of losing ideological ground on this court.

• Jay Sekulow of the ultraconservative American Center for Law and Justice said, “I think everyone is concerned because the 4^th Circuit literally hangs in the balance here.  With the nature of the cases the court has been taking, especially on the terrorism issue, its direction is really critical.”
  
• Lawyer for the Jan LaRue of Concerned Women for America castigated Senate Republicans “for not pushing harder to fill the vacancies before losing control of the Senate.”  She said, “Now all they've done is managed to kick the can down the road, and we’ve lost the majority.  That circuit in the wrong hands could certainly move toward the center-left.”
  
• The American Center for Law and Justice said in a recent memo, “While the overall confirmation of these conservative nominees is important, the confirmation of conservative jurists to the D.C. and Fourth Circuits is imperative.  Both courts have an especially great impact on national policy and in light of the upcoming change in administrations, it is essential that we secure conservatives on these courts.”

Current Composition of the Court

Chief Judge Karen J. Williams was appointed by President George H.W. Bush in 1992 and has served as Chief Judge since 2007.  In 2006, she threw out a class action lawsuit against an insurance company that had been charging African-Americans higher rates than whites for low-value life insurance policies.  Despite the plain language of anti-discrimination laws, the company boldly argued that the practice was “a wise business decision based on mortality tables showing that African-Americans had shorter life expectancies and were thus higher life-insurance risks than similarly situated whites.” [3]

Judge J. Harvie Wilkinson III was appointed by President Ronald Reagan in 1984.  In 2003, while he was Chief Judge, he issued an opinion for a three-judge panel that rejected the petition for a writ of habeas corpus filed by Yaser Esam Hamdi, an American citizen captured in Afghanistan, finding that President Bush had validly detained him under the president’s war powers.  The Supreme Court reversed this ruling, holding that Hamdi had a right to contest the evidence against him before a neutral decision maker.[4]

Judge Paul V. Niemeyer was appointed by George H.W. Bush in 1990.  In 1995, Judge Niemeyer wrote an opinion upholding the Virginia Military Institute’s policy of excluding women, finding that Virginia satisfied its obligations under the Constitution by offering women admission to a program at another college that, in the words of Justice Ginsburg, “afford[ed] women no opportunity to experience the rigorous military training for which VMI is famed.”  The Supreme Court reversed Judge Niemeyer’s ruling in a 7-1 decision.[5]

Judge M. Blane Michael was appointed by President Bill Clinton in 1993.  In 2005, following Supreme Court precedent at the time, Judge Michael wrote an opinion holding Virginia’s “partial-birth” abortion ban unconstitutional because it lacked an exception for women’s health.  (Judge Niemeyer dissented.)  The Supreme Court vacated this decision in light of its 2007 decision altering its prior precedent.[6]

Judge Diana Gribbon Motz was appointed by President Bill Clinton in 1994.  Judge Motz wrote the panel opinion in the Al-Marri case, described above, which held that an alien lawfully present in the United States could not be arrested here and detained indefinitely by the President without meaningful judicial review.[7]  That opinion is now being reviewed by the full Fourth Circuit.

Judge William B. Traxler was appointed by President Bill Clinton in 1998.  In 2003, he reversed a district court’s grant of summary judgment to three correctional officers in an Eighth Amendment case where a prisoner alleged that the guards were deliberately indifferent to his safety.  He found that the guards did not have qualified immunity, based on evidence that they had ignored the plaintiff’s pleas for help as they watched for at least forty-five minutes while a group of prisoners who were screaming death threats broke into the cage where the plaintiff was being held and then savagely assaulted him.  Judge Luttig dissented, citing the guards’ “responsible conduct” given the “exigent circumstances.”[8] 

Judge Robert B. King was appointed by President Bill Clinton in 1998.  In 2001, he dissented from a three-judge panel decision (in the majority were Judges Niemeyer and Williams) that upheld Virginia’s law mandating a minute of silence in public school classrooms so that students may “meditate, pray, or engage in any other silent activity.”  He described the statute as “a thinly veiled attempt to reintroduce state-sanctioned prayer into [Virginia] schools.”[9]

Judge Roger L. Gregory was given a recess appointment by President Bill Clinton in 2000, re-nominated by President George W. Bush in 2001, and subsequently confirmed to a lifetime appointment.  In 2004, he dismissed a First Amendment claim by an employee who had been fired for violating his company’s anti-harassment policy by refusing to remove Confederate Flag stickers from his toolbox, despite repeated complaints by African-American co-workers who found the stickers racially offensive.  The Fourth Circuit voted to rehear the case en banc and, in an opinion by Judge Williams, vacated Judge Gregory’s decision and remanded the case to state court for lack of federal jurisdiction.[10]

Judge Dennis Shedd was appointed by President George W. Bush in 2002.  In 2003, he overturned a National Labor Relations Board decision that an employer unlawfully withdrew union recognition and unlawfully solicited nine employees to sign anti-union statements.  He held that although the company urged an antiunion employee to ask about not supporting the union at an orientation meeting for strike replacement workers, and then the new employees signed a “No Union” petition, this was not substantial evidence of unlawful solicitation.[11]  

Judge Allyson K. Duncan was appointed by President George W. Bush in 2003.  In 2004, she threw out a claim under the Americans with Disabilities Act (ADA), finding that the employee – who suffered from Post Traumatic Stress Disorder (PTSD) from years of childhood incest and abuse – was not “disabled” for purposes of the ADA, since her PTSD did not substantially limit a major life activity (including interacting with others).  Judge Shedd dissented and described Judge Duncan’s efforts to affirm the trial court’s summary judgment on grounds not considered by the lower court as “strained.”[12]

President Bush’s Failed Nominees Perpetuate Vacancies

In an effort to push the Senate to rubberstamp pending nominees, President Bush and his allies in the Senate have recently focused on the number of Fourth Circuit vacancies, but the vacancy rate is largely a product of the president’s abysmal nominations who failed to get Senate approval:

§      While on the federal district court, Judge Terrence Boyle had been reversed over 150 times for ignoring precedent, subverting basic procedural rules, and repeating the same errors over and over again.  In one civil rights case, he managed to be reversed twice by the Supreme Court for overreaching to strike down voting plans providing equal opportunity to African American candidates.  He had also contravened rules of judicial conduct by deciding several different cases involving companies in which he owned stock.

§      As General Counsel for the Department of Defense, William J. Haynes recommended using harsh interrogation techniques amounting to cruel, inhuman, and degrading treatment, overrode the advice of numerous military lawyers, and advocated circumventing U.S. domestic law, the U.S.-signed Geneva Conventions, and long-standing U.S. military practice regarding detainee treatment. 

§      As Deputy Secretary for the Department of Health and Human Services, Claude Allen was a vocal proponent of abstinence-only-until-marriage programs, even defending the Bush Administration’s decision to pull vital information regarding condom effectiveness and teen pregnancy prevention programs from the Center for Disease Control and Prevention (CDC) website, claiming, “We’re looking at ourselves to see what we need to do to be efficient and effective.” After his nomination was withdrawn, he was arrested for shoplifting.

All three of these nominations were ultimately withdrawn – unable to gain confirmation even in a Republican-controlled Congress.  These bad choices made in pursuit of President Bush’s ultraconservative agenda, combined with Republican obstructionism during the Clinton administration, have led to extraordinarily long vacancies – including one lasting more than a decade.  

Call for Speedy Confirmations Is Height of Hypocrisy

President Bush’s insistence that the Senate rapidly consider his nominees in the waning days of his administration is the height of hypocrisy. Most of President Bush's nominees have been selected to galvanize his extreme right-wing base, and many were put forward without consultation with or support of their home state Senators.  This administration's extremist judicial appointees already dominate nearly all the federal courts around the country.  From weakening employment discrimination protections to advancing the cause of big-business interests at the expense of consumers, Bush’s impact on the federal bench has undone decades of progress.

The time has come for the Senate to stand up to President Bush and refuse to allow politics be the driving force behind every nomination to the federal bench, including the Fourth Circuit seats that remain vacant.  The Senate has an obligation to fill that bench with individuals who will stand up for ordinary Americans, not use ideology to chip away at our most fundamental rights.