What if we could take perhaps the second- or third-most powerful court in the country, a favorite court of conservatives, and install a liberal/progressive majority instead?
What if this is not a hypothetical or fantasy?
Because it’s not. The 4th Circuit, which hears federal appeals from Maryland, Virginia, West Virginia, North Carolina, and South Carolina, was long regarded as perhaps the nation’s most conservative federal court—even more than the Supreme Court. Yet now, it is not even a conservative court of any kind. What changed?
President Obama. That’s what changed. And he did it with remarkable speed.
(Note—the 4th Circuit’s power stems from its jurisdiction over Maryland and Virginia, homes to many federal agencies. So when conservatives try to decrease federal power vis a vis wealthy business interests, the cases often go to the 4th Circuit.)
More below the fold
A Brief History of the 4th Circuit
Unsurprisingly, race plays a major role in this saga. With the exception of West Virginia, all the states in the 4th Circuit have large black populations. They were the sites of much racial strife in the civil rights era. (Remember the Titans, anyone?) For many years, though, no black judge could get confirmed to the 4th Circuit. Why? The viciously racist Carolina Senators Strom Thurmond and Jesse Helms used every procedural trick in the book to make sure no black judge would hear cases from their states.
On the flip side, when Bill Clinton became president, he made it a point to integrate the 4th Circuit—which, naturally, brought him into conflict with Helms and Thurmond. They made sure his nominations of black men like James Wynn and Andre Davis never saw the light of day. And with a GOP Senate, that was easy. Clinton got the last laugh, though—in the last month of his presidency, with the Senate in recess, he bypassed them and appointed Roger Gregory as the first black judge of the 4th Circuit. In a rare moment of compromise, George W. Bush renominated Gregory, and the Senate approved him 93-1 (Trent Lott cast the sole no vote—surprised?)
On the other hand, Bush nominated some extreme ideologues to the 4th Circuit: Terrence Boyle, former Helms staffer who once was reversed unanimously by SCOTUS in a Clarence Thomas opinion; William Haynes, who provided some of the justification for torture; Claude Allen, who was arrested for repeatedly shoplifting, etc. Thankfully, Democrats stood up for a change and blocked these people from getting confirmed. Nonetheless, three Bush nominees did get approved (although one is a relative moderate).
The 4th Circuit has also been home to conservative judicial icons like J. Harvie Wilkinson and J. Michael Luttig, both of whom were strongly considered for the Supreme Court by George W. Bush. (After being passed over, Luttig resigned from the bench to return to private practice. Good riddance.) Luttig was the author of the atrocious 2005 decision that gave Bush the power to hold Jose Padilla indefinitely. Wilkinson made an equally terrible ruling in Hamdi v Rumsfeld—and the Supreme Court reversed that decision 8-1, with only Clarence Thomas backing Wilkinson and Bush.
And the Democrats on that court have sometimes been unreliable. Look no further than the Padilla case—Luttig’s decision was joined by two conservative Clinton appointees, M. Blane Michael and William Byrd Traxler.
All of this brings us to Obama’s term. There were four vacancies (of 15 seats) on the 4th Circuit in 2009. Two of them were the seats to which Clinton nominated Wynn and Davis. Bush’s outrageous nominees, Boyle, Allen, etc. had been blocked for the duration of his presidency. By 2009, the Senate was in Democratic hands, and Helms and Thurmond had died. Obama renominated Wynn and Davis to the same seats to which Clinton had nominated them, and the Senate approved both overwhelmingly.
Meanwhile, Obama filled the other two seats (which had been vacated by Republicans) with Barbara Milano Keenan and Albert Diaz, the latter being the first Hispanic judge on the 4th Circuit—though, depressingly, Diaz had also been a lawyer for the tobacco industry.
Obama’s impact on the 4th Circuit did not end there. Conservative GHW Bush appointee Karen Williams had to step down due to Alzheimer’s (she died in 2013), and the aforementioned M. Blane Michael died in office. Obama picked the more liberal Henry Franklin Floyd and Stephanie Thacker as their successors.
There is some delicious irony regarding the Floyd pick—he was a district judge appointed by George W. Bush, and had ruled against Bush in the Padilla case. The ruling that Luttig & Co. had reversed. Now Floyd was being promoted to the same court that overruled him.
Obama got one last nomination for the 4th Circuit, and boy did he use it well. Davis took senior status (a form of semi-retirement where he still hears cases part-time) in 2014, creating another vacancy. Obama filled it with liberal Georgetown law professor Pamela Harris. Read about her here:
Nearly half the full-time judges on the 4th Circuit (6 of 15) are Obama appointees. So is 1 of 2 senior judges. After that, there are 4 Clinton, 3 GW Bush, 1 GHW Bush, and 1 Reagan (Wilkinson) appointee, with Traxler (Clinton) and Duncan (GW Bush) the most likely to cross party lines. Obama has also considerably diversified the court—only one of his seven nominees (Floyd) is a white man. So, the former conservative bastion now has a 10-5 Democratic majority—no small feat, to break a decades-long lock in just a few years!
As for the impact? That’s being felt pretty clearly. Four high-profile cases will illustrate that point:
King v Burwell. We all remember the infamous Obamacare subsidies case, a preposterous legal argument concocted by conservative ideologues determined to destroy the Affordable Care Act by any means necessary. Because the plaintiffs they recruited were from Virginia, the case went to the 4th Circuit—where the 3-judge panel (it’s always 3-judge panels who hear the case first) consisted of Thacker, Gregory, and Davis. All three upheld the subsidies, and the plaintiffs didn’t bother appealing to the whole Court because they knew it was a lost cause there. And of course, we know how the case ended in the Supreme Court.
Same-sex marriage. Jim Obergefell has justifiably gotten much press, but there was a case in the 4th Circuit too—which ended in a win for same-sex marriage. Obama appointee Floyd wrote the decision, joined by Gregory, with a dissent from a Republican. We all know how this ended too.
Gerrymandering. The 4th Circuit struck down racist gerrymanders in Virginia and North Carolina this year. In the Virginia case, Diaz sat on the panel and wrote the decision. Gregory wrote the North Carolina one. The Supreme Court upheld the 4th Circuit in the Virginia case, and Democrats are gaining a House seat as a result.
Voting Rights—the most recent example. The 4th Circuit eloquently called out the NC GOP on their racist, undemocratic vote suppression law, striking it down in a decision written by a Clinton appointee and joined by two Obama appointees (Wynn and Floyd). Hillary Clinton and Democrats have a much more fair shot to win North Carolina.
The Supreme Court gets most of the press. But the circuits matter just as much—they hear far more cases than SCOTUS, and make just as many important decisions. Obama transformed the 4th Circuit, which now rules in our favor on key issues. On the other hand, he had far more limited impact on the 6th Circuit, which remains Republican-dominated and has allowed Ohio to cut back on early voting. www.nbcnews.com/...
More broadly: in 2009, only 1 circuit of 13 total had a Democratic majority—the famously liberal 9th Circuit. Now, 9 of 13 do. With Hillary Clinton we can make it 13 of 13. Not to mention get the first liberal SCOTUS in 50 years. Every federal court in the country in with a pro-equality, pro-science, pro-justice, etc. majority? I don’t think we can overstate the impact that could make. Let’s get it done.