Today's Legal Times reports (subscription only) that, with the retirement of Chief Judge William Wilkins, there are now four unfilled vacancies on the Fourth Circuit. As we have noted on many occasions, President Bush has singlemindedly pushed divisive nominees William Haynes II and Judge Terrence Boyle for two of those openings.
The Fourth Circuit is considered one of the most staunchly conservative courts of appeals and the article points out that many court watchers consider the president's failure to fill any of these current vacancies while Republicans controlled the Senate a "lost opportunity" to reinforce the court's conservative bent. Now, these observers suggest, the new Democratically-controlled Senate may insist on nominees who will “inch this reliably conservative bench closer to the center.”
As if that would be a bad thing. President Bush has had fifty of his appellate nominees confirmed by the Senate -- many of them so deeply conservative they would make any good Rockefeller Republican blush. And yet, perhaps cowed by the party's right wing base, the Republican Senate rubber stamped them nonetheless. President Bush will still be able to fill the Fourth Circuit vacancies in a Democratic Senate. But to do so he'll have to embrace moderate, consensus nominees, rather than obstinately cling to nominees like Mr. Haynes and Judge Boyle, whose records are so controversial that even many of the president's traditional Senate allies balked at them. Thus hopefully, the Fourth Circuit, along with some of the other off-kilter circuits, will be brought closer to the mainstream from which the president and the Senate have allowed them to stray.