A Partisan Hold on the Federal Judiciary - the 4th Circuit as a Court in Point
By Marion Edwyn Harrison (06/18/08)
This Commentary upon a number of occasions has reported the highly partisan - and by more than coincidence - liberal, Senatorial effort to hold open as many Federal judgeships as possible. The largely successful effort unmistakably is in anticipation of the election of a more liberal President and 111th Congress United States Senate.
A “court in point,” to revise the trite phrase, is the United States Court of Appeals for the 4th Circuit, with geographic jurisdiction over the Carolinas, Maryland, Virginia and West Virginia. The 4th Circuit is the veritable exemplar of successful political blocking.
The Court is authorized, and in view of its workload (and long accurately classified as a tribunal with a “Judicial Emergency”), clearly should have, fifteen Judges in active status. Alas, it has eleven, recently increased from ten. Only one, Judge G. Steven Agee, has been confirmed by the present Congress.
In, relatively speaking, more “ancient” years, were nominated James A. Beaty, Jr. (in 1995, withdrawn in 1999), and James A. Wynn, Jr. (in 1999, withdrawn in 2001). More relevant to the present, and ongoing, partisan planned holding open of vacancies, President George W. Bush nominated Judge Terrence W. Boyle (in 2001, withdrawn in 2007), Claude A. Allen (in 2003, withdrawn in 2004), William James (“Jim”) Haynes, II (in 2003, withdrawn in 2007), E. Duncan Getchell, Jr. (in 2007, withdrawn in 2008), Judge Steven A. Matthews (nominated in 2007, pending), Rod J. Rosenstein (in 2007, pending), Judge Glen E. Conrad (in 2007, pending).
Only one meaningfully has been questioned as to his merits. Allen, a White House employee, had a (somewhat minor but still criminal) record and arguably otherwise was of dubious qualification. Haynes, although exceptionally competent, was General Counsel, Department of Defense, a position encumbered with dramatic and controversial policy involvement. The President obviously erred in these two nominations. In addition, although a matter for more theoretical separation-of-powers argument, the President in the real world goofed in initially failing to nominate two Virginians jointly recommended by Virginia’s Republican and Democratic United States Senators - and both individuals Republicans! These errors, probably disproportionately attributable to two politically unattuned Counsel to the President, Alberto R. Gonzales (later Attorney General) and Harriet E. Miers, and others in the White House, unquestionably helped the liberal Senatorial blocking effort.
Be that as it may, with or without knifing opportunities as gifts from the Bush Administration, the Senate partisan leadership has succeeded in holding open numerous United States Court of Appeals judgeships, of which the 4th Circuit is the most dramatic “court in point.” There was supposed to be an understanding with Senate Majority Leader Harry M. Reid (D-NV) that the 110th Congress Senate would confirm about 17 Federal appellate nominees, the record of prior Congresses. So much for that. The Federal Judiciary and litigants continue to suffer, the 4th Circuit as the model victim for partisanship gone wild.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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