Politics & Government

This court has gone to the left. Trump has a chance to move it to the right.

President Donald Trump has spent his first 18 months in office restocking, and reshaping, courts all across the federal judiciary. Now he has the chance to make his mark on the 4th U.S. Circuit Court of Appeals.

Once considered one of the most conservative courts in the country, the 4th Circuit was for years viewed as hostile to civil rights. It was stacked with judges approved by Senate lions Jesse Helms of North Carolina and Strom Thurmond of South Carolina, right-wing warriors who wielded heavy influence in the selection and confirmation process.

But over the past decade, because of six appointees from President Barack Obama, the 15-member 4th Circuit — which hears cases in North Carolina, South Carolina, Maryland, Virginia and West Virginia — has moved decidedly to the left.

It’s become a favorable court for liberal causes and a thorn in the side of North Carolina’s conservative legislature in particular, striking down, among other laws, the state’s voter ID mandate and a requirement that doctors provide ultrasounds to patients who want to have an abortion prior to performing the procedure.

Trump has had more judges confirmed to the federal appellate courts in his first 18 months than any other president, according to the Boston Globe, and now he has three vacancies to fill on the Richmond, Virginia-based court. Each outgoing 4th Circuit judge has taken, or will soon take, “senior status,” a semi-retired status for those who have met age and service requirements but can still hear cases and help meet the needs of the court.

Trump’s picks won’t dramatically shift the court’s ideology overnight: They will be replacing judges who have conservative or centrist reputations. Ten members of the court were picked by Democratic presidents Obama and Bill Clinton, and nine of those are staying on.

Still, the newcomers — young and conservative — will have a lasting legacy, long after Trump leaves office.

“My goal is to make sure we have qualified conservatives on the (4th Circuit) court, and that’s where we’re headed,” said Sen. Lindsey Graham, R-South Carolina.

Graham, who could be the top Republican on the Senate Judiciary Committee in the next Congress, told McClatchy that Trump could “100 percent” remake the 4th Circuit. Graham added he’s on a mission to help Trump do just that. So, too, is Sen. Thom Tillis, a North Carolina Republican and a member of the judiciary committee.

The court has five judges born in 1947 or earlier, opening the possibility that Trump will have more chances to reshape the court.

“I look forward to being a part of that,” Tillis said.

Trump’s picks

Trump has nominated two judges to fill vacancies on the 4th Circuit: Julius N. “Jay” Richardson and A. Marvin Quattlebaum, both of South Carolina. They were recently advanced by the Senate Judiciary Committee, with votes of support from Graham and Tillis, and now they are among the 11 appellate judges awaiting confirmation by the full Senate.

The Senate is expected to give up some of its August recess to address the backlog. Republicans want to move judges through the system quickly, fearful Democrats could retake control of the Senate after the midterm elections and stymie conservative efforts to reshape the federal bench.

Majority Leader Mitch McConnell of Kentucky has made confirming judges his top priority in a deeply divided Senate. Republicans hold a 51-49 edge, with Sen. John McCain’s long absence effectively leaving Republicans with a one-vote majority.

“What I want to do is make a lasting contribution to the country, and by appointing and confirming these strict constructionists to the courts who are in their late 40s or early 50s, I believe, working in conjunction with the administration, we’re making a generational change in our country that will be repeated over and over and over down the years,” McConnell told talk radio show host Hugh Hewitt in May.

“If I have a choice between taking up a particular bill or taking up a circuit court judge, I take up a circuit court judge because I think it makes the longest lasting contribution.”

The Senate has confirmed 20 district court judges and one Supreme Court justice, with Trump’s nomination of a second Supreme Court justice, Brett Kavanaugh, pending.

Graham, along with fellow South Carolina Republican Sen. Tim Scott, endorsed Richardson and Quattlebaum. Graham characterized them as consensus picks — in his words, “conservatives who are not crazy.”

The 53-year-old Quattlebaum, who was confirmed to be a District Court judge earlier this year, was nominated to replace Judge William Byrd Traxler Jr., a 1998 Clinton appointee who served as the court’s chief judge from 2009 to 2016.

Carl Tobias, a professor at the University of Richmond School of Law and an expert on the 4th Circuit, said it was “unusual, if not rare, to have someone move up that quickly.” Graham suggested he and others originally recommended Quattlebaum for the District Court because there was an opening, and it simply made sense to elevate him when the opportunity arose.

“He’s a solid, conservative judge that, quite frankly, everybody likes,” Graham said.

Quattlebaum, as an attorney, was also a member of a council Scott established to advise him on judicial nominations.

The 41-year-old Richardson was nominated to replace Judge Dennis Shedd, a 2002 George W. Bush appointee who was considered one of the most conservative judges on the court. Richardson, a Columbia federal prosecutor, is best known for trying and winning a death penalty case against Dylann Roof, a white supremacist who killed nine black parishioners during a 2015 Bible study at Mother Emanuel Church in Charleston.

Trump has not yet nominated a replacement for Allyson Kaye Duncan of North Carolina, another conservative also confirmed in the George W. Bush years. Tillis said he has looked at some potential nominees, but is giving the White House discretion to make its selection.

“(Trump) needs to pick somebody who’s fairly young,” said North Carolina Senate leader Phil Berger, a Republican. “He doesn’t need to pick someone who’s in their late 50s, early 60s or even 70s. Those are lifetime appointments and, if he picks the right person, hopefully we’ll have someone who takes a conservative approach to being a judge and will be there for a while so that the long-term predictability will be something we can count on.”

Berger and his GOP majority in North Carolina have seen the 4th Circuit upend several legislative victories in recent years. The court struck down North Carolina’s voter ID law, memorably claiming the GOP majority had used the law to “target African-Americans with almost surgical precision.” It also tossed some of the state’s redistricting efforts.

“We’ve had a good bit of frustration with the 4th Circuit. The perception we have is ... some of the judges appear to want to get over into the policy side of things,” Berger said.

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In recent years, the court also struck down Virginia’s same-sex marriage ban, ruled federal subsidies under Obamacare were constitutional even in states that did not set up their own exchange, and backed a Virginia transgender teen who wanted to use the bathroom of the gender with which he identified. Earlier this year, it ruled against Trump’s travel ban affecting certain Muslim-majority countries, which in June was upheld by the Supreme Court.

Elliot Mincberg, a senior fellow at People for the American Way — a liberal advocacy group that among other things tracks judicial nominees — told McClatchy that he and his colleagues would be scrutinizing Trump’s 4th Circuit nominees carefully.

Mincberg said his group has not yet formally weighed in on Quattlebaum and Richardson, but has concluded so far the two aspiring judges are conservatives whose records are “troubling” to progressives.

Moving left

Some recent decisions from the court would have been unthinkable a generation ago, when Thurmond and Helms were able to shape the composition — and even the number of judges — on the court.

In 1990, the court added a 15th member. Thurmond made sure it went to South Carolina, giving the Palmetto State four members.

“(Thurmond) wanted to have South Carolina views, and that’s important. They don’t want Maryland judges on a panel, that would be terrible,” said Tobias. Maryland would have been considered an outlier among the Southern, more traditionally conservative states.

John Napier, a former judge in U.S. Claims Court, aide to Thurmond and one-time Republican U.S. representative from South Carolina, added that Thurmond “worked that system as well as anyone has ever worked a system of creating judgeships.”

Thurmond and Helms both left office in 2003.

Now each state has three seats.

Helms blocked Clinton’s three nominees to the court from North Carolina — all were black men — in retribution for Democrats blocking a George H.W. Bush pick that Helms supported, according to media reports at that time. It wasn’t until 2001 that the court got its first black judge.

That allowed George W. Bush to appoint judges early in his tenure. But after Democrats took the Senate in the 2006 elections, Bush found his picks stymied. Those blocked by Senate Democrats included Steve A. Matthews, a South Carolina nominee endorsed by Graham and then-fellow South Carolina GOP Sen. Jim DeMint who never even got a confirmation hearing.

“Bush continued to push people who would have gotten through with a Republican majority but Democrats were not going to help Bush in his last two years add more conservative appointees to the bench,” Tobias said.

This meant Obama had plenty of opportunities to move the court left, while other courts replaced the 4th Circuit as conservatives’ go-to. Political changes, too, have altered the court. Whereas four states used to be solidly Republican, the circuit contains one clear Democratic state (Maryland), two clear Republican states (West Virginia and South Carolina) and two states that are considered swing states (Virginia and North Carolina).

“It’s clear to me the 5th Circuit — Texas, Mississippi and Louisiana — has seized the mantle,” Tobias said of the 17-member court. “Trump has already named five people to that court and solidified its reputation as the most conservative court.”

It’s a distinction some in the 4th Circuit would like to have back.

“There’s no question that at the end of 2018, we will have revamped many of the courts in this country and moved them further to the right, or at least moved them from where they are, to the right,” Scott said. “I think it will be the legacy of this Congress.”

Meanwhile, progressives are watching closely.

“The 4th Circuit is particularly important because it hears a lot of civil rights-related cases,” Mincberg said. “We’re definitely concerned about a rightward shift.”

Paul A. Specht of The News & Observer contributed reporting from Raleigh.
Emma Dumain: 202-383-6126, @Emma_Dumain
Brian Murphy: 202.383.6089, @MurphinDC
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