This week saw a panel of the U.S. Court of Appeals for the Fourth Circuit issue a decision requiring the government to try the foreign terrorist al-Marri in federal court or else release him. As we argued here, the decision is untenable.
The government hopes to have the panel’s decision overturned by the full Fourth Circuit. Unfortunately, the Fourth Circuit isn’t “full,” and the administration can have little confidence even that all three of the judges it placed on that court will be sympathetic to its position. Indeed, it can be confident that at least one of them won’t be. Roger Gregory, recess-appointed by Clinton and then re-nominated by Bush, has already voted in favor of al-Marri’s claim.
Meanwhile, the Bush administration still hasn’t gotten around to nominating anyone to fill, among other Fourth Circuit vacancies, the two open Virginia seats. However, Senators Warner and Webb reportedly have provided five recommendations for these two vacancies. They are Virginia Supreme Court Justices G. Steven Agee and Donald Lemons, Charlottesville attorney Thomas Albro, U.S. District Judge Glen E. Conrad, and University of Richmond law professor John G. Douglass.
I don’t doubt that most or all of these individuals are qualified for the Fourth Circuit, and the administration should nominate two of them straightaway on the off-chance it can get them confirmed. However, when one considers how much top-notch conservative legal talent resides in Virginia, this list makes me think about what might have been.
Consider John Douglass, for example. By all accounts, he’s a bright and thoughtful lawyer (and a Dartmouth man, to boot), and his credentials show him to be well qualified for the Fourth Circuit. But they don’t show that he would be a jurist in the mold of Scalia, Thomas, Roberts, or Alito, or that of the recently retired Virgina-based Fourth Circuit judge Michael Luttig. Douglass’s judicial clerkship was with the very liberal Fourth Circuit judge Harrison Winter. In the 1980s, he worked on the Iran-Contra investigation.
My inquiries about Douglass leave me reasonably confident that he wouldn’t be a liberal judicial activist. However, they fail to assure me that he would be a powerful voice in consistent opposition to the liberal judicial activists.
Do any law professors in Virginia fit that bill? Off the top of my head I can think of Stephen Smith at the University of Virginia (former clerk to Justice Thomas and Dartmouth man, to boot) and Alan Meese at William & Mary (former clerk to Justice Scalia). And, if one looks past the professoriate, it’s easy to think of at least half a dozen Washington-based star conservative lawyers who live in Northern Virginia.
To be sure, none can be confirmed now. But why did the administration wait until it was too late. This question perplexed me throughout 2006.
We now know that the Justice Department was busy that year replacing U.S. Attorneys. Assuming it made good decisions, this was a worthwhile project and, in any case, well within the adminstration’s rights. But even putting aside the ways in which the move has backfired, the time and effort would have been better devoted to the more important task of nominating and confirming high quality court of appeals judges.
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