Tuesday, August 01, 2006
Keep a Virginian on the bench
From the RoundTable blog
Read the latest entries
Carl Tobias
Tobias is the Williams Professor at the University of Richmond School of Law.
John Warner and George Allen, Virginia's U.S. senators, have undertaken concerted efforts to guarantee that a highly qualified Virginian expeditiously replaces 4th Circuit Judge Michael Luttig, who abruptly retired on May 10, effective immediately, to become the general counsel of the Boeing Co. For 15 years, Luttig was a leader of the federal appeals court, which numerous observers consider the most politically conservative appellate tribunal, and was on many short lists for appointment to the U.S. Supreme Court.
Within a week of Luttig's resignation, Warner and Allen wrote the major Virginia bar associations requesting that they submit lists of excellent judicial candidates whom the senators might suggest for nomination to President Bush not later than May 31.
The bar associations promptly complied with their request by submitting multiple, highly qualified candidates, even truncating the systematic review procedures they normally invoke.
By mid-June, Warner and Allen had interviewed several candidates and immediately thereafter sent a few recommendations to Bush for his consideration. The senators' expeditious actions should help insure that the chief executive nominates a highly competent Virginian to fill the vacancy which Luttig's retirement created.
Nonetheless, a recent development might jeopardize the senators' valuable efforts to have an exceptional Virginian appointed. North Carolina's Sens. Elizabeth Dole and Robert Burr have written Bush urging him to replace Luttig with a jurist from North Carolina, which many residents consider a valley of humility between two mountains of conceit.
The public does not have all of the justifications that Dole and Burr furnished the president to avoid the venerable tradition of replacing any circuit judge, who resigns, retires or assumes senior status, with an individual from the state where the former judge sat. Despite requests for a copy of the letter that the North Carolina senators mailed to the president, the senators' staff has steadfastly refused to make the letter public.
Warner and Allen, thus, might want to exercise some of that much-vaunted senatorial courtesy to extract the letter from their North Carolina colleagues.
However, Dole and Burr did issue a press release about which several North Carolina newspapers reported. The senators apparently contended that North Carolina's possession of the largest population in the 4th Circuit entitles the Tarheel State to Judge Luttig's vacant seat.
The senators' letter argued, "Based upon this [population] guidepost, one would expect North Carolina ... to be assigned four or five of the circuit's 15 judicial seats." They asserted that having only one member of the 4th Circuit from North Carolina, Judge Allyson Duncan, "is tremendously unfair to the residents of our great state."
Of course, Dole and Burr have neglected to recount or at least have conveniently forgotten the relevant history. It was the stubborn opposition of North Carolina senators, especially Sen. Jesse Helms, to judicial nominees from North Carolina whom various presidents tendered that created the present situation whereby North Carolina has only a single active 4th Circuit judge.
Warner and Allen must continue all of their commendable efforts to be certain that an excellent Virginian replaces Luttig on the 4th Circuit. The senators must be especially vigilant to thwart the endeavors of the North Carolina senators, who are urging the president to appoint a North Carolinian.
If Dole and Burr persuade the president to assign North Carolina the seat vacated by Luttig, the Tarheel State's gain would be Virginia's loss, while the action would violate a long-standing Senate tradition.
Virginia's senators must do all in their power to safeguard the commonwealth's strong interest in retaining Luttig's seat and to protect senatorial prerogatives by honoring this great convention.
