Sustained Outrage

Thoughts on the (new) 4th Circuit

Thanks to Saturday’s confirmation of North Carolina Judge Albert Diaz, the U.S. Court of Appeals for the 4th Circuit now has 14 of its 15 seats filled, its highest complement of judges in years. I thought now would be a good time to check in with Carl Tobias, a law professor at the University of Richmond and an expert on the nomination process.

Obama’s four appointees have changed the makeup of the court, which now has nine judges who were nominated by Democratic presidents and five by Republican presidents. However, it’s too soon to conclude that the 4th Circuit, which has the reputation for being one of if not the most conservative Circuit Court in America, has shifted dramatically, he warned.

“I don’t think there’s much of a story in terms of a radical change in terms of the direction of the court,” Tobias told Sustained Outrage. “[The party of the nominating president] is a pretty crude instrument for measuring how people will vote on cases.”

All four — Diaz, James A. Wynn, Barbara Milano Keenan and Andre M. Davis — were already sitting judges, and it’s unlikely to expect any of them to depart wildly from their substantial judicial records, he said. Any shift is likely to be very incremental, but it’s too soon to draw any conclusions, he said.

“If you take their reputations, I think it’s clrea that the four of them are less conservative than the court was before. But how much so, I have no idea,” he said.

In two years, Obama has now placed more judges on the 4th Circuit than George W. Bush did during his eight years in office. Tobias said that the two president have varied in their approaches to filling the vacancies, with Bush holding steadfastly to his nominees who were suggested by the White House. In contrast, Obama has shown substantial deference to the home-state senators for each vacancy, making the Senate more willing to confirm his nominees, he said.

“Part of it was he was willing to listen to the senators, very much so,” he said. “It’s a lesson in how to successfully conduct judicial selection in the 4th Circuit.”

As it did under Bush and Bill Clinton, the number of judicial vacancies has soared over 100 during Obama’s first term. But unlike his immediate predecessors, Obama has not succeeded in quickly reducing that number from its peak, with the number of vacancies staying over 90 or so for the last 16 months, Tobias noted. It is this long period of many vacancies that has put such a strain on the federal court system, he said.

“There just hasn’t been a major dent in [the high number of vacancies], and that’s what’s troubling,” he said. The difference has been the loss of the tradition of confirming well-qualified, non-controversial district nominees.

“That tradition was honored forever, and I don’t think it is anymore. That has contributed substantially to what we’re seeing now,” he said.

Some nominees (and recommended candidates who have yet to be nominated by the president) may withdraw from consideration as they continue to suffer through long waits, he said. That has already happened with a candidate recommended (but not nominated) for a judgeship in the Eastern District of Michigan, he said, and there may be others.

Tobias sounded skeptical of the suggestion that if Obama submitted many more nominees to the Senate, then the high chamber would be more likely to confirm judges quickly. (There are currently 48 vacancies without nominees.)

“Would [Senate Minority Leader] Mitch McConnell change his behavior if every vacancy had a nominee in it, or if they were all approved by the Judiciary Committee? I somehow doubt it, based on his previous behavior,” Tobias said.

Ultimately, Tobias wanted to see what action the Senate took on the remainder of the 38 nominees who had passed out of committee and were awaiting confirmation at the beginning of the lame duck session. While there was talk of a deal allowing the confirmation of up to 19, so far there have been only 12 confirmed, and time is drawing short.

“I think that will tell us a lot,” he said. “If it’s only going to be 14 of the 38, then we still have a long way to go.”