A court of civility and controversial conservatism

The Fourth Circuit's rulings cast a wide influence

By , Staff writer of The Christian Science Monitor

The federal court that sits on a gentle slope down here from the former capitol of the Confederacy is nothing if not genteel. The judges who sit on the court are so rooted in civility, in fact, that they step down from the bench after every oral argument and shake hands with attorneys.

It's an atmosphere where southern manners are as common as lengthy legal briefs.

Yet the friendliness in the courtroom perhaps belies the gravity of its decisions: The Fourth Circuit Court of Appeals is at once one of the most influential - and controversial - courts in the country.

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For a decade, nominations to this court have spurred some of the most bitter Senate confirmation battles - and are doing so again. The Fourth Circuit rulings, and the conservative law clerks who help write them, often wind up at the Supreme Court, shaping the most sensitive legal issues of the day.

Perhaps most important, should, as expected, a vacancy open with the retirement of a Supreme Court justice at the end of the court's term next month, one of the 4th Circuit's judges might end up making the journey north to Washington.

Two of its 12 sitting judges - J. Michael Luttig and J. Harvie Wilkinson - may be on Bush's short list of Supreme Court nominees.

Messrs. Luttig and Wilkinson are just two of the judicial heavyweights on this conservative-dominated court that hears federal trial court appeals from a five-state region extending from Maryland to South Carolina.

"While you know you are dealing with judges with a conservative ideology, you also know you're dealing with judges who are extremely conscientious and open to quality arguments," says Rod Smolla, dean of the University of Richmond's law school.

That conservatism is evident in rulings scaling back everything from employment-discrimination claims to criminal procedural protections such as the Miranda warning. Death-row inmates here have one of the lowest success rates in getting their appeals heard of any of the 12 federal circuits.

Such novel positions often invite Supreme Court review, says Dave Douglas, a law professor at William & Mary law school in Williamsburg, Va. They also make the court a favorite for conservative lawyers. Observers say the court's stances on law and order help explain why the Justice Department chose to hold prominent post-Sept. 11 terrorist suspects within the Fourth Circuit's territory.

Both alleged 20th hijacker Zacarias Moussaoui and American Taliban John Walker Lindh were indicted in a federal court in eastern Virginia, while Yaser Esam Hamdi and alleged dirty bomber Jose Padilla are both in military brigs within its jurisdiction. Any appeals about the detentions land in the Fourth Circuit's dockets, which has so far shown little sympathy to legal challenges on the issue.

"That court has shown a unique willingness to be very activist," says a law professor who once clerked for a Fourth Circuit judge.

President Bush may now turn to the Fourth circuit for Supreme Court nominees. Professor Smolla suggests he may consider either Luttig, a conservative in the tradition of Clarence Thomas and Antonin Scalia, or Wilkinson, a more moderate jurist.

Yet a study of judicial decisions by potential Bush Supreme Court nominees published by the American Judicature Society found Wilkinson exhibited a record of "exceptional conservatism," particularly in the areas of criminal justice and economics.

In a phone interview, Wilkinson rejected such labels. "I've never asked if something is conservative or liberal," he says. "I think the judge's perspective on the bench is focused very precisely on the individual parties and the individual questions in a single case."

Even if Luttig is not tapped for the Supreme Court, his influence on the court is extensive. His clerks, who help judges write draft opinions after graduating from law school, often end up later clerking for Supreme Court justices. Luttig himself clerked for Justice Scalia before ushering Clarence Thomas' nomination through the Senate as a Justice Department attorney.

The Fourth Circuit's current posture somewhat belies its past. In the 1960s and '70s, the tribunal earned a reputation as a leader in civil rights. But many judges of that era ended up retiring during the Reagan years, allowing the former president to restock the court with more conservative jurists.

President Bush, for his part, has already shown a desire to continue the Fourth Circuit's tilt to the right but also to increase the number of minorities on the bench.

The court's jurisdiction has the highest minority population of any in the country.

Yet it didn't get its first African-American until 2001, when Mr. Bush nominated Roger Gregory. Judge Gregory was something of an anomalous appointment for Bush: He was tapped for the bench by President Clinton, during a Senate recess, after strong opposition from Republicans. Bush later reaffirmed the appointment, which was temporary.

The court's three current vacancies have been the subject of far more acrimony, again going back to the Clinton era. Republican senators led by Jesse Helms of North Carolina blocked the nomination of four Clinton nominees to the court. Senate Democrats have since returned the favor, blocking the nomination of Terrence Boyle, a former aide to Sen. Helms. President Bush's two most recent nominations - two conservative African-Americans, including Allyson Duncan, who would be the court's first black woman - stand a better chance of getting confirmed.

Still, lawyers who argue before the court say a conservative majority doesn't mean its decisions are a forgone conclusion.

Similarly, members of the court's Democratic minority say they feel comfortable serving here. "There's a long tradition of judges on the court getting along well with one another and having respect for each other on a personal level," says Judge M. Blane Michael of West Virginia, a Clinton appointee.

Unlike other circuits, all the Fourth Circuit's judges meet during the same week each month. The handshakes also help maintain a cordial atmosphere."It's really important to treat litigants with respect," says Wilkinson. "I'd rather go down from the bench than simply disappear behind a curtain."

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