A Court of Civility and Controversial Conservatism ; the Fourth Circuit's Rulings Cast a Wide Influence

By Seth Stern writer of The Christian Science Monitor | The Christian Science Monitor, May 29, 2003 | Go to article overview

A Court of Civility and Controversial Conservatism ; the Fourth Circuit's Rulings Cast a Wide Influence


Seth Stern writer of The Christian Science Monitor, 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.

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.

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