Courts and Law

Is the 4th Circuit veering back to the center?

United States Court of Appeals for the Fourth Circuit

It’s been nearly a decade since the New York Times profiled the 4th U.S. Circuit Court of Appeals in Richmond—the court of last resort for the vast majority of cases filed in federal courts in North Carolina, South Carolina, Maryland, Virginia and West Virginia—as “the most aggressively conservative federal appeals court in the nation.”

It was a court shaped largely by the patronage and obstructionist tactics of Carolina senators Strom Thurmond and Jesse Helms, then consisting of eight Republican and four Democratic appointees.

And it was not just conservative, but boldly so, wrote Deborah Sontag in “The Power of the Fourth,” a court “confident enough to strike down acts of Congress when it finds them stretching the limits of the federal government’s power and hardheaded enough to rule against nearly every death-row defendant who comes before it.”

Cornell law professor and renowned death penalty litigator John Blume once called the Fourth Circuit the “black hole of capital litigation,” and authored a law review article about the court entitled “The Dance of Death, or ‘Almost No One Gets Out of Here Alive.'”

But since late 2009, Barack Obama has appointed six judges to the Fourth Circuit, flipping the scorecard in favor of Democratic appointees.

What that has brought, in the eyes of court observers, is a slow but not yet steady shift leftward—to the center.

Packing the court

The Lewis F. Powell, Jr. United States Courthouse, where the 4th Circuit sits, predates the Civil War—the second oldest continuously operating courthouse in the federal system.

But its age belies the pace of proceedings inside.

Some 5000 appeals were filed there—and just as many resolved—during 2011, putting the court in the middle of the pack for federal court of appeals caseloads. But it ranks near the top in terms of efficiency, second only to the 8th Circuit in moving its cases quickest from filing to disposition.

For most of those appeals, the Fourth Circuit represented the end of the line, since the nation’s highest court hears only a handful of cases coming out of the federal appellate courts each year.

And for residents of the states within the circuit, the court’s decisions on the wide variety issues presented in those appeals establish the law, unless and until the Supreme Court says otherwise.

In the last month alone, the Fourth Circuit handed down decisions on issues ranging from the rights of criminal defendants to multinational admiralty disputes to Medicaid fraud by drug companies—mostly affirming decisions of the district courts, though in one recent reversal, a three-judge panel rejected a Cary resident’s claim that municipal ordinances banning his “screwed by the town of Cary” sign violated his First Amendment rights.

It heard arguments from payday lenders that claims alleging violations of North Carolina usury statutes had to be resolved by arbitration; between a North Carolina design company and a national homebuilder involving allegations of infringement of rights to architectural drawings; and from a criminal defendant confined to Butner for six years that he poses no threat to society and should be released.

The court, with a majority of Republican appointees, earned its conservative reputation by ruling over the years that women could be banned from military institutes and that the Federal Drug Administration could not regulate tobacco, and by rejecting virtually every death penalty appeal that came before it.

But a Democratic-controlled U.S. Senate rejection of Bush nominees for the court starting in 2007 left Barack Obama with four vacancies to fill when he first took office, and two more since.

Despite a sense that Obama has been slow to fill judicial vacancies during his first term, he has managed to place six new judges on the Fourth Circuit, including two African-Americans, two women and the court’s first Hispanic, former North Carolina Business Court judge Albert Diaz.

Too soon to tell

Certainly the shift in party affiliation gives some comfort to those long weary of the Fourth Circuit’s staunch conservatism.

“Some of this is comparative,” Blume said. “There was a time, at least in the habeas context, capital and non-capital, and in the civil rights context, that it was almost impossible for a plaintiff or a petitioner to win, regardless of the merits of the claims,” he added. “With the Clinton appointees and the current president’s appointees there has been a shift. I don’t know that I would call it a seismic shift. It’s now a court before which you can get a panel and win.”

Blume pointed to the court’s 2-1 decision in Elmore v. Ozmint, reversing a death row defendant’s murder conviction, as one example of a shift.

Richmond School of Law professor Kevin Walsh, who clerked on the court for Judge Paul Niemeyer, thinks the shift has been more dramatic. One way to see that is to look at court en banc decisions, where the full 15-member court reviews a decision by one of its three-judge panels, he told the Richmond Times Dispatch in November.

For example, in a recent appeal by military contractors seeking immunity in suits concerning the Abu Gharib prison in Iraq, the three-judge panel—two Republican appointees and one Democrat—sided with the contractors. But the en banc panel then reversed, 11-3.

Walsh said that he thought that the court’s judges were not necessarily voting along party lines, but along ideological divides that often correlate with those lines.

But not always. Close to a decade ago, Sontag pointed out that Judge William Traxler voted so often with the conservative majority that people forgot he was a Clinton appointee.

Whether that comfort is lasting remains to be seen, given the recency of the Obama appointments, said University of Richmond School of Law professor Carl Tobias.

“First of all, it’s too early to tell,” he said. “We just don’t have enough decisions or enough panels on which the Obama nominees have sat yet. And I personally resist the notion that you can tell a whole lot by the appointing president. I think it depends on the issue before the court.”

“For example in the environmental area there are just so few cases, or opinions that are written, there isn’t enough to tell much,” he added. “You have to look at it over time and over case types.”

If reversal rates mean something, a liberal philosophy has yet to set in. During the 2011 term, the Fourth Circuit was the circuit least reversed by the conservative U.S. Supreme Court.

But Tobias doesn’t put much credence in those either, at least not in the short term. “In any particular year, there may be so few cases reviewed that that would skew reversal rates.”

In the end, he added, you have to look at the individual appointees. “Most of them were sitting judges, mainstream judges.”

“I do think it’s a less conservative court—there’s no dispute about that. But whether it’s liberal is much less clear.”

The Fouth Circuit Judges

Chief Judge William B. Traxler, Jr.

Born in Greenville, S.C., in 1948, Chief Judge Traxler has served on the federal bench for more than 20 years—first as a U.S. District Judge appointed by President George H.W. Bush in 1992 and then on the Fourth Circuit after his appointment by President William J. Clinton in 1998. He has served as Chief Judge since 2009.

Traxler earned his undergraduate degree from Davidson College and his law degree from University of South Carolina Law Center. He began his legal career in private practice and as a U.S. Army Reserve Adjutant General, in Greenville, S.C., where he went on to become Solicitor General and then resident judge for the 13th Judicial Circuit, Greenville County S.C.

Judge J. Harvie Wilkinson III

Judge J. Harvie Wilkinson III

Judge Wilkinson was born in New York, N.Y., in 1944. He has served on the Fourth Circuit for 29 years, having been appointed by President Ronald Reagan in 1984.

Wilkinson earned his undergraduate degree from Yale and his law degree from the University of Virginia School of Law, where he became a professor after clerking for U.S. Supreme Court Justice Lewis F. Powell. He also served for a time as the editorial page editor for the Norfolk Virginian-Pilot and as a deputy assistant U.S. attorney general in the Civil Rights Division of the U.S. Department of Justice.

Judge Paul V. Niemeyer

Judge Paul V. Niemeyer

Born in Princeton, N.J., in 1941, Judge Niemeyer got his start on the federal bench as a U.S. District Judge in 1988, after his appointment by President Ronald Reagan. In 1990, President George H.W. Bush named him to the Fourth Circuit.

Niemeyer graduated from Kenyon College, attended the University of Munich and got his law degree from Notre Dame. Before taking his seat on the federal district court in Maryland, he was in private practice with the law firm Piper & Marbury in Baltimore. He has also served as a Senior Lecturing Fellow at Duke Law School.

Judge Diana Gribbon Motz

Judge Diana Gribbon Motz

Judge Motz was born in Washington, D.C., in 1943. She was named to the Fourth Circuit by President William J. Clinton in 1994. She is married to U.S. District Judge J. Frederick Motz in Maryland.

Motz is a graduate of Vassar College and the University of Virginia School of Law. Before joining the court, she was in private practice in Baltimore, served as an assistant state attorney general and as an associate judge of the Court of Special Appeals in Maryland.

Judge Robert B. King

Born in White Sulphur Springs, W.Va., in 1940, Judge King was appointed to the Fourth Circuit in 1998 by President William J. Clinton.

King graduated from West Virginia University and the West Virginia University College of Law. He began his legal career as a law clerk to U.S. District Judge John A. Field in West Virginia and then was in private practice for several years in Lewisburg and Charleston. From 1970 to 1974, King was an assistant U.S. attorney in the Southern District of West Virginia, and from 1977 to 1981 served as U.S. Attorney there.

Judge Roger L. Gregory

Judge Roger L. Gregory

Judge Gregory was the first African American to sit on the Fourth Circuit. Born in Philadelphia, Pa. in 1953, he initially received a recess appointment from President William J. Clinton in late December 2000. President George W. Bush then re-nominated him to the same position in 2001—giving him the additional distinction of being the only person in U.S. history to be appointed to the U.S. Court of Appeals by two presidents of different political parties.

Gregory is a graduate of Virginia State University and the University of Michigan Law School. Before joining the bench, he was in private practice in Michigan and in Virginia.

Judge Dennis W. Shedd

Born in Cordova, S.C., in 1953, Judge Shedd was appointed to the U.S. District Court in South Carolina in 1990 by President George H. W. Bush and then elevated to the Fourth Circuit by President George W. Bush in 2002.

Shedd is a graduate of Wofford College and the University of South Carolina Law Center. He also received his LL.M from Georgetown University Law Center. Before his appointment to the court, he served on the staff of U.S. Sen. Strom Thurmond and as chief counsel for the Senate Committee on the Judiciary and was in private practice in Columbia.

Judge Allyson K. Duncan

Judge Duncan was born in Durham, N.C., in 1951. She was appointed to the Fourth Circuit by President George W. Bush in 2003 to the seat vacated by Samuel J. Ervin III, and is the first African American woman to sit on the court.

Duncan is a graduate of Hampton University and Duke University School of Law. Before her appointment, she served as an attorney with the Equal Employment Opportunity Commission; an associate professor at North Carolina Central University School of Law; a judge on the North Carolina Court of Appeals; and a commissioner on the North Carolina Utilities Commission. She also practiced with the Kilpatrick Stockon law firm in Raleigh. She is married to U.S. Magistrate Judge William A. Webb, who sits in Raleigh.

Judge G. Steven Agee

Born in Roanoke, Va., in 1952, Judge Agee was appointed to the Fourth Circuit by President George W. Bush in 2008.

Agee graduated from Bridgewater College and the University of Virginia School of Law. He also received his LL.M from New York University School of Law. Before his appointment, Agee was in private practice in Virginia and then served as a member of the Virginia House of Delegates, a judge on the Court of Appeals, and a Justice of the Supreme Court of Virginia.

Judge Andre M. Davis

Judge Davis was born in Baltimore, Md., in 1949. He was initially appointed to the U.S. District Court there by President William J. Clinton in 1995 and then to the Fourth Circuit by President Barack Obama in 2009.

Davis is a graduate of the University of Pennsylvania and the University of Maryland School of Law. He started his legal career as a law clerk to U.S. District Judge Frank Kaufman in Maryland and then to Fourth Circuit Judge Francis D. Murnaghan, Jr., whose seat he would later occupy. Davis was an appellate attorney in the Civil Rights Division of the U.S. Department of Justice; an assistant U.S. attorney in Maryland; and a Baltimore city and state court judge.

Judge Barbara Milano Keenan

Born in Vienna, Austria, in 1950, Judge Keenan was appointed to the Fourth Circuit by President Barack Obama in 2010

Keenan is a graduate of Cornell University and George Washington University Law School. She also received her LL.M from the University of Virginia School of Law. She began her legal career as an assistant commonwealth attorney for Fairfax County, where she was also a commissioner in Chancery, a member of the Board of Zoning Appeals and a judge in the District and Circuit courts. She then served as a Court of Appeals judge and a Justice of the Supreme Court.

Judge James A. Wynn, Jr.

Judge Wynn was born in Robersonville, N.C., in 1954. He was appointed to the Fourth Circuit by President Barack Obama in 2010.

Wynn is a graduate of the University of North Carolina at Chapel Hill and Marquette University Law School. He also received his LL.M from the University of Virginia Law School. He served in the Navy JAG Corps as a captain and a reserve captain and an assistant appellate defender in N.C. He was in private practice in Wilson and Greenville, N.C., until he became a judge on the N.C. Court of Appeals and then a justice on the N.C. Supreme Court.

Judge Albert Diaz

Judge Albert Diaz

Judge Diaz was born in Brooklyn, N.Y., in 1960. He was appointed to the Fourth Circuit by President Barack Obama in 2010, making him the first Hispanic judge to serve on the Fourth Circuit.

Diaz is a graduate of the University of Pennsylvania Wharton School and New York University School of Law. He also received his M.S. from Boston University. Before taking his seat on the Fourth Circuit, he served in the Legal Services Support Section of the U.S. Marine Corps at Camp Lejeune and then as appellate counsel for the Office of the Judge Advocate General of the Navy. He then served as a superior court judge in North Carolina and a special superior court judge on the North Carolina Business Court.

Judge Henry F. Floyd

Judge Henry F. Floyd

Born in Brevard, N.C., Judge Floyd was initially appointed the U.S. District Court in South Carolina by President George W. Bush in 2003 and then to the Fourth Circuit by President Barack Obama in 2011.

Floyd is a graduate of Wofford College and the University of South Carolina School of Law. Before his appointment to the bench, he was in private practice in Pickens, S.C., and a member of the S.C. House of Representatives. He also served as Pickens County attorney and a state circuit court judge.

Judge Stephanie D. Thacker

Judge Thacker was born in Huntington, W.Va., in 1965. She was appointed to the Fourth Circuit by President Barack Obama in 2012.

Thacker is a graduate of Marshall University and West Virginia University College of Law. Before her appointment, she was in private practice in Pittsburgh, Pa., and in Charleston, W. Va.; an assistant attorney general with the state Environmental Division; an assistant U.S. Attorney for the Southern District of West Virginia; and a trial attorney and deputy chief of the U.S. Department of Justice, Child Exploitation and Obscenity Section.

Senior Judge Clyde H. Hamilton

Judge Hamilton was born in Edgefield, S.C., in 1934. He was appointed to the U.S. District Court, District of South Carolina, by President Ronald Reagan in 1981 and then to the Fourth Circuit in 1991 by President George H.W. Bush. He assumed senior status in Nov. 1999.

Hamilton is a graduate of Wofford College and George Washington University Law School. Before serving on the bench, he was in private practice in Edgefield and Spartanburg, S.C.

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