This op-ed piece in the New York Times reminds me: we can (and should) do something about the Fourth Circuit.
The article is written by Judge Wilkinson, a staunch conservative, and a main driving force that gives the Fourth Circuit the reputation as being the most conservative in the country.
The Fourth Circuit is the federal court of appeals (one court level "below" the U.S. Supreme Court) that presides over Maryland, Virginia, West Virginia and the Carolinas. It, like the other circuit courts are powerful, as this 2003 NYT article states:
Few pay much attention to federal courts below the Supreme Court level. But they should. The appellate courts, created in the late 19th century to relieve overcrowding of the Supreme Court's docket, decide about 28,000 cases a year compared with the highest court's 75 or so. Practically speaking, they have the final say in most matters of law; their reach is broader, if not deeper, than the Supreme Court's itself.
The Fourth Circuit has been damaging, and carries the potential to do more damage:
It pushes the envelope, testing the boundaries of conservative doctrine in the area of, say, reasserting states rights over big government. Sometimes, the Supreme Court reins in the Fourth Circuit, reversing its more experimental decisions, but it also upholds them or leaves them alone to become the law of the land.
Some of the 4th Circuit's best-known rulings, upheld by the Supreme Court, include striking down a law allowing rape victims to sue their attackers in federal court and preventing the Food and Drug Administration from regulating tobacco.
It's no surprise then, that during the Bush administration, the 4th Circuit has been the court of choice on national security, issuing key rulings that backed the government on the detention of enemy combatants and the prosecution of Sept. 11, 2001, conspirator Zacarias Moussaoui.
Judge Wilkinson is worried:
With four vacancies on our 15-member court, the 4th Circuit may be the best game in town. With the new numbers in the Senate, the temptation is there to go for an ideological makeover.
And naturally, he doesn't want to see that happen.
On one level, he is correct. The courts should not be full of ideologues. But in making that comment, Wilkinson has a blind spot to his own ideological makeup.
He's not going anywhere. But with Obama in office, and a Democrat-controlled Congress, now is the time to provide, not an ideological "makeover", but an ideological course correction to a more balanced Fourth Circuit.
UPDATE: A comment at Volokh Conspiracy about Wilkinson:
As chief judge of the Fourth Circuit during the Clinton Administration, Wilkinson repeatedly made statements claiming that the Senate should not confirm any Clinton nominees to that court because it would reduce the court's "collegiality." He immediately ceased his objections when Bush took the oath of office.
Now, on the third day of the Obama Administration, Wilkinson warns that President Obama better not nominate any judges who don't agree with Judge J. Harvie Wilkinson. I'd like to know who he thinks he's fooling.