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
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
"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. …