Commentary: Filling Fourth Circuit court vacancy in N.C.

In the summer of 1994, J. Dickson Phillips, a highly-respected North Carolina judge on the U.S. Court of Appeals for the Fourth Circuit, assumed senior status, a form of semi-retirement.

Phillips had rendered distinguished service since 1978 when President Jimmy Carter appointed him from his post as Dean of the University of North Carolina - Chapel Hill School of Law. No one has been appointed to Phillips' position for the Fourth Circuit since he became a senior judge.

Indeed, Phillips' seat is easily the longest opening across the United States. Because that vacancy deprives North Carolina of representation on the court and undermines its delivery of justice, President-elect Barack Obama must expeditiously name a highly-qualified replacement to this opening.

The Fourth Circuit presently experiences vacancies in four of the fifteen judgeships Congress has authorized for the tribunal, which is the court of last resort for 99 percent of cases from N.C., Maryland, South Carolina, Virginia and West Virginia. The Third and D.C. Circuits have two openings, while the remaining nine appeals courts have no unfilled seats or one. The numerous Fourth Circuit openings are important because they can impair justice's delivery. Among the appellate courts, the Fourth Circuit provides the lowest percentages of oral arguments and published opinions, which are helpful measures of appellate justice.

There are several reasons why Judge Phillips' position has remained empty over fourteen years. His July 31, 1994, assumption of senior status meant that it was probably too late in a mid-term election year for the Senate to confirm a nominee had President Bill Clinton proposed one. In fact, the chief executive only nominated James Beaty, a U.S. District Judge for the Middle District of North Carolina, on Dec. 22, 1995. However, the Republican majority in the Senate did not seriously consider Beaty in part because Senator Jesse Helms (R-N.C.) opposed him. Clinton then nominated James Wynn, a Judge of the N.C. Court of Appeals, in Aug. 1999, but he did not receive a Senate vote.

Other explanations for the longstanding vacancy relate to President George W. Bush's selection approach. In the Bush Administration's early days, it nominated Terrence Boyle, a U.S. District Judge for the Eastern District of N.C., whom Bush's father had nominated in 1991. However, numerous Senate Democrats, especially John Edwards (D.-N.C.) opposed Boyle, partly as payback for GOP blocking of Clinton nominees, because Boyle had served as Helms' aide and due to Boyle's rulings. Bush nominated Boyle multiple times, even though many senators, a few of whom were Republicans, opposed the nomination. In Jan. 2007, after Democrats had captured a Senate majority, the President decided against renominating Boyle, and in August he nominated Robert Conrad, a U.S. District Judge for the Western District. However, the Senate Judiciary Committee did not grant the nominee a hearing.

President-elect Obama should use several practices in expeditiously filling the vacancy. First, he must employ a bipartisan approach to stop the unproductive dynamic of accusations and counter-charges, partisan bickering and continuous paybacks. Secondly, the chief executive ought to seeking views on candidates from N.C. Senators, Kay Hagan (D) and Richard Burr (R), before he formally nominates. The Senate members have already conferred privately regarding the open seat and have agreed that they will attempt to break the impasse. Both have suggested that they will cooperate with Obama and one another. Senator Burr voiced confidence that there would be a "process in place that will fairly evaluate candidates," characterizing judgeships as one area where Obama can reach across party lines. The White House should forward consensus nominees, who are very intelligent, diligent, ethical, and independent as well as possess balanced temperament.

President-elect Obama pledged to increase bipartisanship. He can fulfill this vow by promptly appointing an excellent replacement to assume Judge Phillips' prolonged Fourth Circuit vacancy because North Carolina deserves representation on the court, which requires all of its judges to deliver appellate justice.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.