A piece in the Baltimore Sun last week makes the case that the traditionally conservative Fourth Circuit is becoming increasingly progressive.
The primary support for the argument appears to be:
- Results in about a half dozen recent opinions, including a series of defendant-favorable Fourth Amendment holdings and the court’s rejection of challenges to the Affordable Care Act;
- The fact that 9 of the 14 sitting judges were appointed by Democrats, and 5 were appointed by Republicans;
- Soundbites from a number of pundits, some of whom are extremely credible, and others who may be perhaps ever so slightly biased.
The article, while interesting, lacks force for three reasons:
First, it would be hard to get much more conservative than the Fourth Circuit of yore. The court really didn’t have anywhere to go but left.
Cue cliched image of pendulum swinging.
Second, the Fourth Circuit typically sits in randomly selected panels of three judges. Further complicating matters, one of the three judges might be a judge who has assumed senior status, or it might be a district judge filling in. So it’s still possible that you could show up at court and appear before two or three Republican-appointed judges.
Third, from a practitioner’s perspective, the political affiliation of the president who appointed a particular judge is not necessarily the most salient thing you can know about that judge. Justice Stevens was appointed by Presidents Nixon and Ford, after all.