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Judge H. Emory Widener Jr. steps down as active member of 4th U.S.

Daily Record, The (Baltimore), Jul 19, 2007 by Liz Farmer

After 35 years at his post - and six years waiting for a successor - Judge H. Emory Widener Jr. has stepped down as an active member of the 4th U.S. Circuit Court of Appeals.

Widener, who announced in 2001 that he would relinquish his seat as soon as his successor was confirmed, is taking senior status immediately, personnel at the court said.

The move creates a fifth vacancy on the 15-member bench, widely viewed as the most conservative appeals court in the federal system. With Widener stepping down, though, that could change.

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"Now, it's split down the middle," said William J. Watkins Jr. of Womble Carlyle in South Carolina, who broke the news on his law firm's blog Wednesday morning. "If Bush can't fill the seats then his successor - which I assume will be a Democrat - can really change the tenor of the court."

Although the president nominated Robert J. Conrad Jr. of North Carolina to the court on Tuesday, doubts remain whether his administration will be able to fill the seats in the next 18 months.

"I think the president's lost the opportunity to make this a more conservative court, given the timing now and who is in the Senate," said Carl W. Tobias, Williams Professor of Law at the University of Richmond School of Law.

"His future nominees will have to be less ideological than the earlier ones because I don't think the Democrats will confirm anyone less this late in the administration," Tobias said.

Be prepared to wait

Widener is the third judge to step down in little more than a year.

Chief Judge William W. Wilkins, of Greenville, S.C., took senior status effective July 1. Judge J. Michael Luttig, of Virginia, resigned in May 2006.

The other vacancies were left by Judge James Dickson Phillips Jr. of North Carolina in 1994, and by Judge Francis D. Murnaghan Jr. of Maryland, who died on Aug. 31, 2000.

While Wilkins and Widener can continue to hear some cases as a senior judge, one more full-time judge off the bench might put a dent in the speed with which the court resolves its cases.

Lawyers should be prepared for their cases to take a little longer, said Watkins, who estimated that cases in the 4th Circuit that now take about three to four months for an opinion, could take six months to a year until more seats are filled.

However, pointed out Mark Graber, professor of law and government at the University of Maryland School of Law, that would put the court's performance at the rate of most other circuit courts around the country.

"The crisis of staffing in the 4th Circuit is not stunning when put in perspective," he said. "It's a big crisis in our household, but life goes on even when appellate courts can't put out as many decisions."

The 4th Circuit, which encompasses Maryland, Virginia, West Virginia, North Carolina and South Carolina, already provides the lowest percentage of published opinions of any federal appeals court, according to Tobias.

Widener was not available for comment Wednesday, and employees at the court could not elaborate on his decision to take senior status without a named successor.

Born in 1923 in Abingdon, Va., Widener was appointed by President Richard Nixon in 1972. He was the longest-serving federal appellate judge until he took senior status. (Judge Gerald Tjoflat, appointed in 1975 to the 11th U.S. Circuit Court of Appeals, now claims that title.)

William J. Haynes, general counsel for the U.S. Department of Defense, was nominated last year to take Widener's slot, but faced strong opposition in the Senate for his role in green-lighting controversial interrogation techniques and detention policies for suspected terrorists.

In January, Haynes withdrew from consideration, marking Bush's fourth failed attempt to fill a vacancy on the court.

In August 2006, the president nominated U.S. District Judge Terrence Boyle to fill the seat left by Phillips in 1994. Boyle, too, proved controversial and his nomination failed to come to a vote in the Senate.

Peter Keisler, a Washington lawyer, and Claude A. Allen of Virginia, a top advisor to the president, were nominated during Bush's first term to replace Murnaghan. Their nominations were withdrawn after Maryland's senators objected that the men were not sufficiently connected to this state.

Bush has successfully appointed sitting judges Roger L. Gregory of Virginia, Dennis W. Shedd of South Carolina and Allyson Kay Duncan of North Carolina to the court.

Judge H. Emory Widener Jr. steps down as active member of 4th U.S.

Daily Record, The (Baltimore), Jul 19, 2007 by Liz Farmer

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