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Health care law likely to test Obama’s influence on Fourth Circuit Court of Appeals

Image has not been found. URL: http://images.americanindependent.com/2010/08/MahurinLaw_Thumb1.jpgWith the confirmation of Judge Albert Diaz on Dec. 18 to the Fourth U.S. Circuit Court of Appeals, President Obama’s influence on the court seems firmly in place. Diaz is the fourth Obama nominee to take a seat on the 15-member court. How much impact Obama nominees have had will likely be on display as a lawsuit over the new federal health care law begins what the law’s detractors hope leads to a challenge in the U.S. Supreme Court.

Last week, U.S. District Court Judge Henry Hudson of Virginia ruled on a lawsuit filed by Ken Cuccinelli, Virginia’s attorney general, striking down parts of the health care law. Likely, the next step up the ladder to the Supreme Court is the Fourth Circuit.

Diaz was nominated by President Obama on Nov. 4, 2009, and at the time of his confirmation, no other federal judge currently awaiting approval by the Senate had waited longer. Though Diaz was generally seen as an uncontroversial nominee, he got caught up in the political process that results in a backlog of judicial nominees no matter who controls the Oval Office.

In an op-ed for The Herald Sun prior to the lame-duck session U.S. Sen. Kay Hagan (D-N.C.) made it clear that confirming Diaz was one of her top priorities. She also underscored the importance of the 4th Circuit and framed the battle over judicial nominees-

The 4th Circuit is the last stop for almost all federal cases in the region, and we need to have the court at full strength. Because of its longstanding vacancies, the Administrative Office of the U.S. Courts considers the 4th Circuit a “judicial emergency.” This negatively impacts appellate justice for North Carolinians. This bench provides the fewest oral arguments and published opinions in the country.

The delay for judicial nominees is unprecedented. By Dec. 8, 2002, during the Bush Administration, the Senate had confirmed 100 judicial nominees. But as of today, the Senate has confirmed just 41 judicial nominees. During the first two years of the previous administration, it took an average of 26 days for a circuit court nominee to be confirmed after being approved by the Judiciary Committee. Since President Obama took office, it has taken an average of 133 days. And Diaz has been waiting 314 days since the committee approved him 19-0. This is totally unacceptable.

Up to 19 judges that have been nominated by Obama could be approved during the lame-duck session, according to an agreement struck between Democratic and Republican leaders in the Senate. U.S. Courts of Appeals are vitally important because they set many legal precedents and have the final say in many cases. In a typical year, the Supreme Court hears less than 100 cases out of the more than 10,000 cases filed.

President Obama’s contingent on the Fourth Circuit is joined by three judges who were nominated by George W. Bush, five by President Clinton, one by President George H.W. Bush, one by President Reagan and one seat is vacant. That 9-5 margin for Democratic nominees is a marked contrast to the makeup of the court prior to Obama’s tenure.

When Obama took office, Republicans held a 6-to-5 advantage on the 4th Circuit. Senate inaction on judges left four seats vacant, although senior justices, who don’t hear a full-case load helped ease the burden to some degree.

The Fourth Circuit long had a reputation as a haven for conservative rulings. During the ’90s, in cases like Friends of the Earth v. Laidlaw Environmental Services, parts of the Clean Water Act were rolled back, and, in Brzonkala v. Virginia Polytechnic Institute, the court found parts of the Violence Against Women Act unconstitutional.

Post 9/11, the Fourth’s conservative stances led to cases against terrorist suspects such as Zacarias Moussaoui and John Walker Lindh to be filed in the Fourth Circuit, despite the actions of the defendants taking place outside the physical boundaries of the court. The Pentagon and military bases, where such defendants are often held, lie in the Fourth Circuit, allowing for cases to be tried there.

Carl Tobias, a law professor at the University of Richmond, says its to early to tell how far to the left court will move. “If you take their reputations, I think it’s clear that the four of them are less conservative than the court was before. But how much so, I have no idea,” he said.

The controversial federal health care law may have people across the country examining the opinions of Obama’s judges on the Fourth Circuit very soon.

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