Wilkinson Pleads With Obama to Save the Fourth Circuit From The Ideologues

It has long been known that the U.S. Court of Appeals for the 4th Circuit is among the most conservative courts in the nation.  As the New York Times reported back in 1999:

The Federal appeals court based in Richmond, Va., has quietly but steadily become the boldest conservative court in the nation, in the view of scholars, lawyers and many of its own members who say the court has issued some remarkable rulings and taken a striking tone on several issues.

The court, the United States Court of Appeals for the Fourth Circuit, which covers five mid-Atlantic and Southern states, has in recent years evolved into the kind of bench that staunch conservatives had hoped to create at the Supreme Court but never quite achieved despite 12 years of Republican appointments under Presidents Ronald Reagan and George Bush.

The Fourth Circuit, which is one level below the Supreme Court, is by far the most restrictive appeals court in the nation in granting new hearings in death penalty cases, according to several statistical studies. It is highly receptive to efforts by states to restrict abortion, and it has blazed new trails in striking down laws that a majority of its judges say improperly enhance Federal power at the expense of the states.

As such, control of the 4th Circuit has long been a prize that conservative judicial activists have feared losing and now that Barack Obama is president and the court currently has several vacancies, one conservative 4th Circuit judge, J. Harvie Wilkinson, has taken it upon himself to ask President Obama not to saddle his court with a bunch of “ideologues” who will break the conservative’s stranglehold:

With four vacancies on our 15-member court, the 4th Circuit may be the best game in town. With the new numbers in the Senate, the temptation is there to go for an ideological makeover.

Yet the tempting course would prove a misguided one. Of course there will be change, as there should be after every presidential election … ideology should not be the foremost criterion for selecting a judge … Ideological fervor is law’s great antithesis … The 4th Circuit has never prided itself on ideology but on the collegiality that takes minds out of concrete and prevents personal animosities from clouding and distorting the essential act of judgment … Wisdom in judging resides, now more than ever, in knowing all that we do not know, in resisting the urge to become ideologically self-assured … Wherever wisdom resides, it does not lie with the ideologues; activism of all persuasions is a trade best practiced away from the bench.

To be sure, there will be change and disagreement on the 4th Circuit, but I pray that coming appointments to our court will not cause the doors of communication and compromise to slam shut. A polarized 4th Circuit would bring no discernible public benefit. At the end of the day, it’s not lines of battle; it’s not us and them. Americans are in this together, and that includes the courts.

Of course, we wouldn’t want “ideology” to get in the way of the court’s “collegiality” of which Wilkinson speaks so highly”

Of the 13 active judges in the Fourth Circuit, the conservative-minded members like Judges Wilkinson and Luttig, appointed principally by Presidents Reagan and Bush, only slightly outnumber the judges who were put on the court by Presidents Jimmy Carter and Bill Clinton.

”There is a core of about seven judges on this court who generally share a common view about many of these issues,” said one of the judges in an interview.

The conservative majority on the court has not been reluctant to wield its majority forcefully.

That has resulted in an especially troublesome dispute among some judges on the circuit. On a handful of occasions, judges and former law clerks say, the conservative majority has successfully prevented the release of judicial opinions that displeased them.

The most telling example occurred last July, as described by judges on both sides of the philosophical divide, former judges and law clerks. A Federal trial judge ordered the Commonwealth of Virginia not to begin enforcing a law requiring underage women to obtain the consent of one parent before having an abortion.

The state quickly sought to have the ruling reversed, and applied to Judge Luttig, who agreed to do so.

In an account confirmed by several judges, the abortion-rights lawyers then quickly asked for a three-judge panel to reconsider the case. The two judges chosen randomly to make up the panel with Judge Luttig were Judges Clyde H. Hamilton and J. Dickson Philips Jr. They wrote an opinion overturning the Luttig order.

An angry Judge Luttig quickly requested that the case be considered by the full court. In the meantime, the Chief Judge ordered that the ruling by the three-judge panel be withheld from the public. Eventually the full panel unanimously upheld Judge Luttig.

Arthur Hellman, a professor at the University of Pittsburgh Law School who has studied the appeals courts, says the Fourth Circuit regularly overrides decisions made by three-judge panels by quickly having the whole court consider the cases, a procedure known as ”en banc.”

”There is a conservative majority on the full court, and if they see a panel decision they don’t like, they just take it en banc and reverse it,” he said. ”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.”

Some judges said in interviews that they objected to the frequency with which the conservative majority resorted to the en banc procedure to overturn three-judge panels. ”There have been some really nasty fights within the court over that issue,” one judge said.