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  1. #1
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    United States Courts of Appeals



    United States Court Of Appeals For The First Circuit

    United States Court Of Appeals For The Second Circuit

    United States Court Of Appeals For The Third Circuit

    United States court Of Appeals For The Fourth Circuit

    United States Court Of Appeals For The Fifth Circuit

    United States Court Of Appeals For The Sixth Circuit

    United States Court Of Appeals For The Seventh Circuit

    United States Court Of Appeals For The Eighth Circuit

    United States Court Of Appeals For The Ninth Circuit

    United States Court Of Appeals For The Tenth Circuit

    United States Court Of Appeals For The Eleventh Circuit

    United States Court Of Appeals For The District Of Columbia

    United States Court Of Appeals For The Federal Circuit

    The United States courts of appeals (or circuit courts) are the intermediate appellate courts of the United States federal court system. A court of appeals decides appeals from the district courts within its federal judicial circuit, and in some instances from other designated federal courts and administrative agencies.

    The United States Courts of Appeals are considered among the most powerful and influential courts in the United States. Because of their ability to set legal precedent in regions that cover millions of people, the United States Courts of Appeals have strong policy influence on US law; however, this political recognition is controversial. Moreover, because the US Supreme Court has a small docket and hears fewer than 100 cases annually, the United States Courts of Appeals serves as the final arbiter on most federal cases.

    There are currently 179 Judges on the United States Courts of Appeals authorized by Congress and Article III of the US Constitution. These judges are nominated by the President of the United States, and if confirmed by the United States Senate have lifetime tenure, earning an annual salary of $184,500.

    There currently are thirteen United States courts of appeals, although there are other tribunals (such as the Court of Appeals for the Armed Forces, which hears appeals in court-martial cases, and the United States Court of Appeals for Veterans Claims, which reviews final decisions by the Board of Veterans' Appeals in the Department of Veterans Affairs) that have “Court of Appeals” in their titles. The eleven “numbered” circuits and the D.C. Circuit are geographically defined. The thirteenth court of appeals is the United States Court of Appeals for the Federal Circuit, which has nationwide jurisdiction over certain appeals based on their subject matter. All of the courts of appeals also hear appeals from some administrative agency decisions and rulemaking, with by far the largest share of these cases heard by the D.C. Circuit. The Federal Circuit hears appeals from specialized trial courts, primarily the United States Court of International Trade and the United States Court of Federal Claims, as well as appeals from the district courts in patent cases and certain other specialized matters.

    Decisions of the United States courts of appeals have been published by the private company West Publishing in the Federal Reporter series since the courts were established. Only decisions that the courts designate for publication are included. The "unpublished" opinions (of all but the Fifth and Eleventh Circuits) are published separately in West's Federal Appendix, and they are also available in on-line databases like Lexis or Westlaw. More recently, court decisions are also available electronically on the official Internet websites of the courts themselves. However, there are also a few federal court decisions that are classified for national security reasons.

    The circuit with the smallest number of appellate judges is the First Circuit, and the one with the largest number of appellate judges is the geographically-large and populous Ninth Circuit in the Far West. The number of judges that the U.S. Congress has authorized for each circuit is set forth by law in 28 U.S.C. 44.

    Although the courts of appeals are frequently referred to as "circuit courts," they should not be confused with the former United States circuit courts, which were active from 1789 to 1911, during the time when long-distance transportation was much less available, and which were primarily first-level federal trial courts that moved slowly from place to place in "circuits" in order to serve the dispersed population in towns and the smaller cities that existed then.

    http://en.wikipedia.org/wiki/United_...rts_of_appeals

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    Graves confirmed to 5th Circuit

    The U.S. Senate voted Monday to confirm Mississippi Supreme Court Presiding Justice James Graves to the 5th U.S. Circuit Court of Appeals.

    "This is an incredible honor," said Graves. "I am humbled by the support which I have received, and I look forward to serving our nation in this important position."

    Gov. Haley Barbour is expected to appoint a replacement to serve the remaining two years of Graves' term, which expires in January 2013.

    On Monday evening, Mississippi Republican Sens. Roger Wicker and Thad Cochran spoke on the Senate floor in Graves' favor.

    Wicker praised the 57-year-old Clinton native for his career of public service and his work with youth, saying, "Even in this position of increased responsibility and visibility, he will continue taking time to work with our nation's young people.''

    Cochran said he was pleased Graves "can take up the important work of serving on the federal bench."

    Chief Justice William Waller Jr. praised his colleague. "It has been a privilege to serve with him on the Supreme Court during the past 10 years," he said in a statement.

    In December, Graves' nomination stalled, but President Obama resubmitted his name in January.

    Graves was the first appellate nominee to come before the full Senate this year, but if the administration gets its way, he won't be the last.

    "The Senate confirmed Judge Graves because he is well qualified and noncontroversial and the two home state senators strongly supported the jurist," said Carl Tobias, a law professor at the University of Richmond.

    He said this may signal a shift in how nominations are handled in the Senate.

    There are 100 federal judicial vacancies with the confirmation of Graves and another federal judge on Monday, said Senate Judiciary Chairman Patrick Leahy, D-Vt.

    "That is too many, and they have persisted for too long," Leahy said.

    Iowa U.S. Sen. Charles Grassley, the ranking Republican on the Judiciary Committee, said it's unfair to blame Republicans for delays.

    Graves' appointment is historic, said former state Supreme Court Justice Fred Banks Jr. "He will be the third African American ever appointed to the 5th Circuit and the first from Mississippi. He'll serve well on the court."

    The court has been historic, hearing many of the school desegregation cases in the 1960s. In 1962, the 5th Circuit - which then stretched from Texas to Florida - cleared the way for James Meredith to become the first African American to attend the University of Mississippi.

    "It was a very unique time and a very unique court," Banks said. "Some of the things the 5th Circuit did were later emulated by the U.S. Supreme Court, including the elimination of the dual school system in the South."

    Matt Steffey, professor at Mississippi College School of Law, said Graves brings "long overdue diversity" to the mostly white 5th Circuit, which now handles cases from Texas, Louisiana and Mississippi.

    "Justice Graves is undoubtedly a great choice," Steffey said. "He's a first-rate intellect and has exactly the kind of experience and judicial temperament that will serve him well on the 5th Circuit, where he'll see a great breadth of civil and criminal cases."

    During a confirmation hearing, U.S. Sen. Jeff Sessions, R-Ala., questioned Graves joining another justice's 2008 dissent, which called the death penalty cruel and unusual.

    Graves responded that he considered the dissent merely a plea for dialogue on the effectiveness of the death penalty.

    He reassured Sessions he would follow federal law and the U.S. Constitution and later provided a list of 22 cases in which he voted to affirm a death sentence.

    Graves previously served as a circuit judge in Hinds County.

    Since 1998, he has served as a a Teaching Team Member of the Trial Advocacy Workshop at Harvard Law School. He also serves as an adjunct professor teaching media law, civil rights law and sociology of law at Millsaps College, Tougaloo College, and Jackson State University.

    As presiding justice on the Mississippi Supreme Court, he received $113,190 a year. Federal appeals-court judges are paid $184,500 a year.

    Steffey said called Graves "an outstanding longtime public servant, and we're lucky to have him."

    http://www.clarionledger.com/article...to-5th-Circuit

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    Ouote JT: "The 6th Circus Court of Appeals"

    6th Circuit on losing streak in Supreme Court cases

    The U.S. 6th Circuit Court of Appeals in Cincinnati is one of the most powerful courts in the nation, but these days it's suffering through a major slump.

    The court owns the longest losing streak in the country over the past two years at the U.S. Supreme Court, which reviews decisions and corrects mistakes made by the nation's top appeals courts.

    The Supreme Court has examined 15 rulings from the 6th Circuit since 2008 and has thrown out every one of them.

    In each case from death penalty appeals and tax disputes to disagreements over election law the Supreme Court found critical errors that tainted the 6th Circuit's decision.

    "It's a bit surprising to see 15 reversals in a row," said Michael Solimine, a University of Cincinnati law professor who studies the federal courts.

    Some 6th Circuit judges are surprised, too. But they say they're doing their best and are trying to take the rejection in stride.

    "Getting reversed by the Supreme Court, some people these days think, is a badge of honor," said Gilbert Merritt, a semi-retired senior judge and one of the 6th Circuit's most liberal members. "It depends on your point of view."

    The 6th Circuit's performance matters because the court handles about 2,500 federal appeals a year from Ohio, Kentucky, Tennessee and Michigan the vast majority of which never make it to the Supreme Court.

    The consequences of getting those decisions wrong can be severe and, in some cases, can literally mean the difference between life and death.

    Three of the 15 overturned cases involve convicted killers who were spared execution by the 6th Circuit only to have the Supreme Court send them back to death row.

    Two others were denied by the 6th Circuit but later won reprieves from the Supreme Court.

    The 6th Circuit's other overturned cases include a dispute over voter registration laws, an employer retaliation claim and a disagreement about how natural gas companies are taxed.

    All of those cases were subject to Supreme Court review because the 6th Circuit, as one of the nation's 12 regional appeals courts, is one notch below the Supreme Court in the judicial pecking order.

    "It's their place in the system," said Arthur Hellman, a University of Pittsburgh law professor who studies the appeals courts. "It wouldn't do them much good to get upset or rail against the Supreme Court."

    The 6th Circuit's liberal judges were more likely than conservatives to write opinions later reversed by the Supreme Court, but almost all of the appeals court's 15 active judges were on the wrong side of at least one overturned decision.

    Court watchers say that suggests the 6th Circuit's losing streak isn't the result of a deep ideological split with the Supreme Court.

    Instead, they say, the court just keeps getting the law wrong, especially in cases of prisoners challenging their convictions and sentences. Those cases accounted for eight of the Supreme Court's 15 reversals.

    "It clearly sends a message to the 6th Circuit that we are watching you," Hellman said.

    He said the 6th Circuit's 0-for-15 run could be a symptom of more significant flaws in the court's decision-making process if the reversals continue.

    But he warned against reading too much into the streak just yet.

    "A unanimous decision by the Supreme Court doesn't necessarily correlate with the circuit court being out to lunch," Hellman said. "It doesn't necessarily reflect on the ability or competence of the judges."
    A poor showing

    In some ways, the odds are stacked against the 6th Circuit from the outset.

    That's because the Supreme Court reviews only the cases it deems worthy, usually less than 100 a year out of some 30,000 appeals court decisions nationwide. Sometimes the goal is to resolve conflicting rulings in the lower courts and sometimes it's to answer big constitutional questions.

    Either way, the chances for a reversal are good because the Supreme Court justices wouldn't take those cases if they thought the appeals court resolved all the issues the first time around.

    "It's not a random sample of cases that they hear," Solimine said. "They decide what they want to decide."

    And about 70% of the time, they decide the lower court got it wrong and reverse the decision.

    But even by that measure, the 6th Circuit's batting average is poor.

    An Enquirer analysis found that the other 11 regional appeals courts each had at least one decision upheld or partially upheld by the Supreme Court in the past two years.

    California's 9th Circuit, the nation's largest and most liberal, led the way with 31 reversals and has butted heads for years with the increasingly conservative Supreme Court. But even the 9th Circuit was upheld seven times and had four split decisions.

    The 6th Circuit, which had the second most reversals, hasn't won a case since 2007.

    The 6th Circuit's chief judge, Alice Batchelder, did not respond to an interview request.

    But Boyce Martin, a former chief judge who still sits on the court, said he's not concerned because he sees no pattern in the cases the Supreme Court overturns.

    Unlike the 9th Circuit, the 6th Circuit is not engaged in a philosophical duel with the Supreme Court. The 6th Circuit has, in fact, become far more conservative in recent years following the arrival of eight judges appointed by President George W. Bush.

    "I don't think you can read anything into it," said Martin, who joined the court under President Jimmy Carter in 1979. "There's no pattern whatsoever. If you look at those cases, they're splattered from here to yon."

    Jonathan Adler, a Case Western Reserve University law professor, said the relationships between judges on the 6th Circuit might have something to do with their bad track record during the past two years.

    The judges bickered publicly a few years ago over the death penalty, among other things, and Adler said lingering hard feelings could contribute to mistakes today.

    He said that's because judges rely on each other to talk out tough issues and to catch potential errors before they write their opinions. If 6th Circuit judges don't do that, they may be prone to more mistakes.

    "The 6th Circuit went through a period where the judges really didn't play well together," Adler said. "I think the temporary breakdown in collegiality and trust hampered the ability of the court to keep itself in line with Supreme Court precedent."
    Room for debate

    Merritt chalks up the streak of reversals to a more practical problem: Sometimes judges just disagree when they try to divine the meaning of thousands of government regulations and laws.

    "Congress has passed a lot of laws in my 35 years on the bench, and a lot of those laws aren't clear," Merritt said. "It's an issue that's debatable among judges."

    Perhaps the best example of that debate is the case of Gary Cone, a convicted killer in Tennessee whose case has bounced between the 6th Circuit and the Supreme Court three times in the past decade.

    The first two times, a three-judge panel that included Merritt and two Republican-appointed judges threw out Cone's death sentence because of mistakes made during his trial.

    The Supreme Court reversed the 6th Circuit and reinstated Cone's death sentence both times.

    Cone returned to the 6th Circuit for a third try in 2008 and this time the Republican judges outvoted Merritt 2-1 to uphold Cone's death sentence, just as the Supreme Court had done twice before.

    So what did the Supreme Court do when it got a third crack at the case? It reversed the 6th Circuit yet again, declaring Cone's death sentence should be overturned after all.

    Merritt said the Cone case shows how difficult and confusing decisions can be for any judge, whether they sit on the 6th Circuit or the Supreme Court.

    The difference is the Supreme Court always gets the last word.

    But Merritt said that doesn't mean the Supreme Court is always right or that the 6th Circuit is wrong every time it gets reversed.

    "The Supreme Court is only final because it is final. It's not final because it has an excessive degree of wisdom over everyone else in society," Merritt said. "Just because the 6th Circuit gets reversed, it doesn't mean the 6th Circuit has lost its mind."

    http://www.usatoday.com/news/nation/...it-court_N.htm

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    U.S. Supreme Court again rejects most decisions by the U.S. 9th Circuit Court of Appeals

    It was another bruising year for the liberal judges of the U.S. 9th Circuit Court of Appeals as the Supreme Court overturned the majority of their decisions, at times sharply criticizing their legal reasoning.

    Appeals from the nine Western states of the circuit dominated the high court's docket, as usual, supplying more than 30% of the 84 cases taken up by the justices during the term that ended last month.

    The Supreme Court reversed or vacated 19 of the 26 decisions it looked at from the 9th Circuit this judicial term, issuing especially pointed critiques of the court's handling of cases involving prisoners' rights and death row reprieves.

    Although the proportion of reversals was relatively in line with past years and other appellate circuits across the country, the 9th Circuit was often out of step even with the high court's liberal justices, who joined with the conservatives in 12 unanimous rulings.

    In their reversals, the justices often expressed impatience with what they see as stubborn refusal by the lower court to follow Supreme Court precedent. One of the circuit's most renowned liberals, Judge Stephen Reinhardt, was seen by judicial analysts as the main target of the justices' pique.

    "It just seems that they are getting a bit frustrated with these criminal procedure cases," said Barry McDonald, a constitutional law professor at Pepperdine University, referring to unanimous reversals of three opinions written by Reinhardt and a decision by another 9th Circuit panel to strike the conviction of a Sacramento rapist who claimed racial bias during jury selection.

    In restoring Steven Jackson's conviction for raping a 72-year-old woman, the high court called the 9th Circuit decision written by Judge Johnnie B. Rawlinson and joined by two other Democratic appointees "as inexplicable as it is unexplained."

    Reinhardt, named to the 9th Circuit by President Carter, penned opinions that ordered parole for a life prisoner denied release by California state courts and granted writs of habeas corpus for two murder convicts on grounds that their defense attorneys had been ineffective.

    Reinhardt said he didn't feel personally reprimanded because the justices often employ strong language to express their disagreement, usually with one another.

    "If anything, it's a compliment. I get treated like the others on the [Supreme] Court," he said in an interview with The Times.

    The Supreme Court's conservative majority has been changing the law in habeas corpus and other constitutional protections, but the circuits have to follow existing law until those changes are explicit, Reinhardt said.

    "It would be easy not to get reversed if you just tried to guess what five of nine justices were going to say about the case," he said. "If you follow the law the way it is, before they change it, you're going to get reversed."

    The high volume of 9th Circuit cases taken up for review is partly explained by the circuit's sheer size, legal experts say. The circuit, one of 13, covers 20% of the nation's population and handles the same proportion of the federal caseload.

    But the justices do tend to watch the 9th Circuit more closely, McDonald said.

    "It's no secret that the 9th is heavily Democratic," he said of the bench where 27 judges were named by Democratic presidents and 18 by Republicans. "The Supreme Court has five justices with a conservative bent, so it's not surprising that value-laden rulings from the 9th Circuit often clash with the conservative majority of the Supreme Court."

    Erwin Chemerinsky, UC Irvine law school dean, sees the focus on the 9th Circuit as a reflection of the region's diversity. Immigration issues from Arizona, capital inmates' habeas corpus petitions from California's teeming death row, environmental disputes and labor-management conflicts arise more often in a judicial region stretching from Montana to Alaska and Hawaii, he noted.

    "Reversal rates have no meaning whatsoever," said Chemerinsky. "If the Supreme Court overrules the 9th Circuit, it doesn't mean that the 9th Circuit was wrong and the Supreme Court was right. It means the Supreme Court had the last word."

    Many of the cases giving rise to reversal involve the two courts' differing views on the 1996 Anti-Terrorism and Effective Death Penalty Act, passed by Congress to speed the appeals process for capital convictions. It requires appeals court judges to give "deference" to the decisions made by judges and juries at the trial court level. The 15-year-old statute is often in dispute because it was "poorly drafted," Chemerinsky said.

    In the case of California death row inmate Scott Pinholster, the Supreme Court by a 5-4 vote reversed the 9th Circuit's decision to vacate the Van Nuys man's death penalty after considering new testimony about brain damage he sustained as a child.

    Coupled with other Supreme Court rulings this term that halted class-action lawsuits against Wal-Mart and AT&T, the Pinholster ruling showed that the justices are "systematically closing the courthouse door" to capital prisoners and those attempting to sue Big Business, Chemerinsky said.

    The Supreme Court typically reverses about 75% of the cases it reviews each year, having selected them because they raise important questions of law or to resolve the internal contradictions created when circuits come to different conclusions about the same legal question. The 9th Circuit's track record tends to be above average most years: two years ago, 94% of the circuit's cases were reversed.

    While the 9th Circuit remains predominantly Democrat-appointed, the composition has shifted since President George W. Bush named seven conservative jurists to the court. President Obama, by contrast, has succeeded in getting only one of the appeals court's four vacancies filled since he took office.

    The conservative faction on the 9th Circuit is often outvoted when the full court is asked to rehear a divisive case. But they have been getting the Supreme Court's attention and intervention by banding together to write dissenting opinions.

    Judge Diarmuid F. O'Scannlain, named to the 9th Circuit by President Reagan, is a frequent author of the red flags sent to the justices in Washington.

    "If there is going to be a change in the interpretation of a constitutional provision or statutory provisions, that's the province of the Supreme Court, and the Supreme Court has told us any number of times that our job is to apply existing Supreme Court interpretation," said O'Scannlain, who prides himself on usually being on the vindicated dissenting side when the high court reverses 9th Circuit decisions.

    Asked if he writes or joins the dissents with an eye to calling the justices' attention to a ruling he disagrees with, O'Scannlain said: "We hear anecdotal evidence that they are not ignored."

    http://www.latimes.com/news/local/la...0,159915.story

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    I wonder how many times a Supreme Court justice has put their head in their hands when overturning the 9th Circuit?

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    Conservative federal appeals court shifts left

    The federal appellate court that covers Maryland has for years been considered one of the more right-leaning in the nation, finding that women can be banned from a military institute, that the FDA can't regulate tobacco and that confessions count even when suspects haven't been read their rights, among other conservative opinions.

    But the 4th Circuit U.S. Court of Appeals now appears to have taken a left turn.

    Last week, the court sided with a criminal suspect over police for the fourth time since March on a Fourth Amendment case claiming that improper searches violated the defendant's rights.

    In September, the court threw out constitutional challenges to President Barack Obama's health care overhaul efforts, finding that a penalty for not having health insurance amounts to a tax that can't be challenged until it's paid and that part of the law doesn't take effect for years.

    And in July, the court ruled in a case over the separation of church and state that only generic, "nonsectarian" prayers are appropriate for government meetings.

    The decisions are the first evidence of an altered philosophy within the 4th Circuit, which oversees federal appeals cases from Maryland, Virginia, West Virginia and the Carolinas, legal analysts said. The shift follows a half-dozen appointments by Obama to a bench that previously had a Republican majority.

    "There's been a marked change," said Ilya Shapiro, a senior fellow at the Cato Institute, a libertarian think tank in Washington. "Historically, this has been one of the most, if not the most, conservative circuits. Now it's almost one of the most liberal."

    When Obama took office, the 4th Circuit, based in Richmond, Va., had 11 sitting judges six Republican appointees and five Democratic picks and four vacancies.

    The spots were left open because the Democratic-controlled U.S. Senate of 2007 and 2008 refused to approve President George W. Bush's 4th Circuit appointments, including Rod J. Rosenstein, who had been named Maryland's U.S. attorney a few years earlier based on a Bush recommendation.

    The inaction on judicial nominations paved the way for Obama to make an impact with his choices, which have focused on diversifying federal courts based on race, gender and sexual orientation. Since he took office, two more vacancies opened on the 4th Circuit, allowing him to nominate six people in total. Five have been approved: a woman, two black men, a Latino, and a white man.

    That makes the split on the court nine Democratic appointments to five Republican. Another Obama pick, Stephanie Thacker, was nominated this year and is awaiting confirmation by the Senate.

    The new makeup could have an effect on national policy, given the kinds of cases handled by this court, legal analysts said.

    "It is among the most important federal appeals courts," said Kenneth A. Klukowski, a constitutional lawyer on the faculty of Virginia's Liberty University. It covers "an area of the country which has some especially important business and economic interests. It's also the circuit that covers the Pentagon, the CIA, the NSA and a lot of our national security installations."

    Cases involving Fourth Amendment protections against unreasonable searches and seizures clearly signal change on the court, analysts said

    Last week, in a 2-1 decision, the judges found that police officers from Seat Pleasant in Prince George's County overstepped their bounds when they used Obie Lee Powell's prior criminal history, which included armed robbery charges, as justification to search him after a traffic stop. Powell was convicted of crack cocaine possession in 2008, based on evidence discovered during the illegal pat-down, and sentenced to 63 months in federal prison.

    His federal public defender, Daniel W. Stiller, called the appeals court decision a victory for constitutional rights.

    "With changing faces on the court, there seems to be an increasing sensitivity to law enforcement overreach, as well as citizen rights," Stiller said.

    The Powell case was the fourth this year to raise concerns "about the inclination of the government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity," judges said in the majority opinion, written by a Republican appointee.

    In March, the 4th Circuit also overturned a North Carolina cocaine conviction after finding that the defendant's odd movements inside a car didn't warrant his detention. In August, they upheld a Maryland federal court's ruling that a state police drug search was illegal, and they reversed a separate ruling from a Virginia federal court allowing evidence from a pat-down done without the suspect's consent.

    Matthew G. Kaiser, a federal criminal defense attorney in Washington who blogs about decisions from the various appeals courts, said the 4th Circuit rulings reveal a court that's now more "hospitable" to arguments from criminal defendants.

    "It's hard to say what's causing the shift directly," Kaiser said. "But I think there is a shift, and there's room for hope for people who represent criminal defendants in the 4th Circuit that wasn't there before."

    He outlined two recent cases that also appear to fall into that category. In July, the judges ruled that prosecutors can't take away a defendant's right to appeal as a condition for a reduced sentence. And this month, they found that a convicted defendant can't be given a stiffer sentence for claiming innocence while testifying in his own case.

    "It's holding the government and the district court to a certain kind of rigorous [examination]," Kaiser said. "That is, I think, a subtle shift. It's a perceptible one, and it's a good one."

    Rod Rosenstein, one of a handful of Bush-appointed U.S. attorneys still in office post-Obama, declined to comment. But his team argued in the Powell case that the traffic-stop search was warranted based on the officer's judgment and safety concerns.

    Police must "harbor a reasonable suspicion" that the person they're about to frisk or detain is likely "armed and dangerous" or engaged in criminal activity before searching someone. It's a subjective standard that relies on common sense, said Doug Ward, director of the Division of Public Safety Leadership within the Johns Hopkins University School of Education. He calls it a "gray area."

    Ward reviewed the Powell case and said he couldn't find anything wrong with the officer's actions. He suggested that the ruling against police may reveal more about the judges than the actions of law enforcement.

    The old 4th Circuit did not always appear so defendant-friendly. A 1999 ruling in a Virginia bank robbery case, for example, made it easier for police to submit coerced confessions in court, even if the defendants were not advised of their Miranda rights, which warn against making statements without a lawyer present.

    Opinion makers at national media outlets were outraged. The Washington Post called the ruling "hair raising," while the New York Times said it was "extraordinarily regressive." The U.S. Supreme Court soon overturned the decision, finding that the 1968 law the 4th Circuit relied upon could not nullify the Miranda requirements, which were set in 1968.

    Also in 1999, the 4th Circuit outraged women's rights advocates when it declared unconstitutional a legal provision allowing rape and violence victims to sue their attackers.

    The conservative reputation grew following decisions that allowed a group to display the Confederate flag on special-order Virginia license plates and blocked President Bill Clinton's initiative to have the U.S. Food and Drug Administration regulate tobacco. (In 2009, with Obama in office, Congress passed a law giving the FDA control over tobacco.)

    The 4th Circuit also heard fewer death penalty cases than other circuits, which appeared to signal a rightward bent.

    "Even by the mid '80s, I think it was pretty clear the court was relatively conservative," said Carl Tobias, a professor at the University of Richmond School of Law, who has studied the 4th Circuit.

    He says it's too early to tell how far left the appeals court might eventually lean with its new makeup. And others pointed out that most cases are heard by a three-person, randomly selected panel, which could depending upon the luck of the draw be made up of all Republican-appointed judges.

    Klukowski, the constitutional lawyer, called the slide to the left "quite unfortunate" and an "excellent illustration of how elections have consequences."

    He's concerned that liberal-leaning judges will reinterpret the Constitution as they see fit. He believes conservative judges might be more likely to stick to the original meaning of the text.

    None of the sitting 4th Circuit judges agreed to be interviewed for this article, but one took on the issue of ideology in an editorial published in 2009.

    "The differences between appointees of Republican and Democratic administrations can be important," wrote 4th Circuit Judge J. Harvie Wilkinson III, who was appointed by Ronald Reagan in 1984. But he cautioned that "ideology should not be the foremost criterion for selecting a judge" and urged Obama to make selections that wouldn't polarize the court.

    "At the end of the day, it's not lines of battle; it's not us and them," Wilkinson wrote. "Americans are in this together, and that includes the courts."

    Klukowski had another take.

    "Conservative judges are sometimes called barbarians, and liberal judges are sometimes called judicial activists," he said. "It's just two different philosophies."

    [email protected]



    4th Circuit rulings in 4th Amendment cases:



    U.S. v. Powell, decided Nov. 14 Drug and gun evidence seized during a Seat Pleasant search should have been excluded from trial because the search was improper.

    U.S. v. Massenburg, decided Aug. 15 A Virginia federal court should have suppressed gun and marijuana evidence from a "nonconsensual" police search.

    U.S. v. Digiovanni, decided July 25 A Maryland federal judge properly excluded from trial more than 34,000 Oxycodone pills found by state troopers during an illegal search.

    U.S. v. Foster, decided March 2 A North Carolina cocaine conviction was overturned after judges ruled that the defendant's odd movements inside a car didn't justify his detention and search.



    4th Circuit judges



    Of the 14 sitting 4th Circuit Court of Appeals judges, nine were nominated by Democratic presidents and five by Republicans:

    J. Harvie Wilkinson III by Ronald Reagan

    Paul V. Niemeyer by George H. W. Bush

    Diana Gribbon Motz by Bill Clinton

    William B. Traxler Jr. by Bill Clinton

    Robert B. King by Bill Clinton

    Roger L. Gregory by Bill Clinton

    Dennis W. Shedd by George W. Bush

    Allyson K. Duncan by George W. Bush

    G. Steven Agee by George W. Bush

    Albert Diaz by Barack Obama

    James A. Wynn by Barack Obama

    Barbara M. Keenan by Barack Obama

    Andre M. Davis by Barack Obama

    Henry F. Floyd by Barack Obama

    http://www.baltimoresun.com/news/mar...589,full.story

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    4th Circuit shedding conservative reputation

    Posted: Monday, November 19, 2012 12:19 am | Updated: 12:00 am, Tue Nov 20, 2012.

    FRANK GREEN Richmond Times-Dispatch



    In his first term, President Barack Obama has had an unprecedented impact on what was long considered the most conservative federal appeals court in the country.

    Except for the handful of cases that make it to the U.S. Supreme Court, the Richmond-based 4th U.S. Circuit Court of Appeals is the court of last resort for the states of Virginia, Maryland, West Virginia and North and South Carolina.

    Since taking office in 2009, Obama has appointed six judges to the 15-judge court, the most of any president in the court's 211-year history.

    "There's no doubt that the 4th Circuit has fundamentally changed; the court has shifted dramatically as a result of appointments," said Kevin C. Walsh, a professor at the University of Richmond School of Law.

    Walsh was a clerk for the 4th Circuit's Judge Paul V. Niemeyer, in 2002-03.

    He noted that as recently as nine years ago - when the court had three vacancies and President George W. Bush was in office - the court was so famously conservative that The New York Times Magazine did a cover story on it:

    "As Bush makes his selections, his staunch conservative supporters tout the 4th Circuit as a model to emulate, and liberals view it anxiously as a harbinger of doom. That's because the 4th Circuit, which has eight Republican and four Democratic appointees, is not only conservative but also bold and muscular in its conservatism. It is confident enough to strike down acts of Congress when it finds them stretching the limits of the federal government's power and hardheaded enough to rule against nearly every death row defendant who comes before it."

    At the time, the court had two judges believed to be top Bush prospects for the U.S. Supreme Court: J. Michael Luttig, who has since left to become general counsel for Boeing Corp., and J. Harvie Wilkinson III.

    Bush made four appointments to the 4th Circuit, including the 2001 nomination of Virginian Roger L. Gregory after President Bill Clinton made a temporary direct appointment of Gregory to the post in December 2000 while Congress was in recess.

    But neither Luttig nor Wilkinson was ever nominated for the Supreme Court. And by the time Obama was elected, the Senate was controlled by Democrats and the 4th Circuit had four vacancies.

    The 4th Circuit now has nine of its 15 judges appointed by Democratic presidents.

    The first woman did not join the court until 1992, and although the states that make up the 4th Circuit have a higher percentage of African-American residents than any of the 12 other circuits, it was not until 2001 that the first black judge, Gregory, joined the court.

    Today there are four African-Americans, four women and one Latino on the court.

    The appeals court generally hears cases in three-judge panels, and sometimes the entire court agrees to hear an appeal of a panel's ruling in what is called an en banc.

    "One way to see how the balance of power shifts is to see which cases are going en banc and who is on the winning side of those," Walsh said.

    For example, Walsh said, the 4th Circuit recently heard an appeal by military contractors seeking immunity from suits filed over the Abu Ghraib prison in Iraq. The initial three-judge panel sided with the contractors in a 2-1 split.

    The panel majority were Republican appointees and the dissenter, Robert B. King, a Clinton appointee. The court heard the case en banc and in an 11-3 ruling earlier this year reversed the three-judge panel.

    "Maybe 10 years ago when you had a minority of judges who were appointed by Democratic presidents, (they) were usually on the losing side of the en banc cases, and now things have shifted," Walsh said.

    Walsh noted that in 2009, Virginia's partial-birth abortion law was considered en banc by the court and upheld by one vote.

    "On a very ideologically freighted issue, you saw a very closely divided court," he said. Were the question before full court today, Walsh said, "given the changes in the composition of the court, I'm not sure that case would come out the same way."

    He said Republican appointees often vote with Democratic appointees and vice versa. The judges are not voting down party lines, but given the different ideological backgrounds on the court there's a rough correlation with party lines, he said.

    Nevertheless, said Walsh, "people who were winning in en banc determinations 10 years ago are more often on the losing side now."

    John H. Blume, a professor at the Cornell University School of Law and director of the Cornell Death Penalty Project, has represented condemned inmates before the 4th Circuit. He agrees with Walsh that the court has changed.

    Blume once labeled the court the "black hole of capital litigation" and wrote a law review article about the court titled "The Dance of Death, or (Almost) No One Gets Out of Here Alive."

    But last May, three Virginia death row inmates, Ivan Teleguz, Justin Wolfe and Leon Winston, had cases argued before three different panels of the court and - except for a minor point in Wolfe's case - the judges ruled unanimously for all three.

    "I think that due to changes in the court, it is now a court in which if the facts and law are on your side, you can win," said Blume. "I wouldn't call it a liberal federal court of appeals but I would call it much more of a moderate court of appeals now," he said.

    Blume said he believes the U.S. Supreme Court still views the 4th Circuit as a fairly conservative institution. "But it's definitely much more moderate than it was four years ago," he said.

    Carl Tobias, another professor at the University of Richmond Law School and an expert on the court, said this is the first time the court has ever had all 15 judges. A 15th judge was approved for the court in 1990, but it went 20 years without being filled.

    He said there are no announced plans for any judges to retire or take senior status creating an opening. A judge who has reached the age of 65 with 15 years of service can take senior status with a reduced case load but keep the full $184,500 salary.

    Tobias said the judges appointed by Obama were well-qualified and had high ratings from the American Bar Association. "They are diverse in terms of gender and ethnicity, and most (five of the six) were sitting judges," he said.

    "I think we're beginning to see some opinions that probably look different than they would have before those judges came on the court," said Tobias.

    http://www.timesdispatch.com/news/st...9bb30f31a.html

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