Today in the Roanoke Times, law professor Carl Tobias of the University of Richmond writes of a conflict that may be brewing in the Senate between Virginia’s senators, Republicans John Warner and George Allen, and North Carolina’s senators, Republicans Elizabeth Dole and Richard Burr. When Judge J. Michael Luttig, a Virginian on the Fourth Circuit, resigned to join Boeing as general counsel in May, it naturally seemed to Senators Warner and Allen that they had an automatic claim on the seat for a successor from Virginia—the tradition on the circuit courts being to fill each vacancy from the same state where the previous occupant came from.
But on June 8, Senators Dole and Burr made a move (made public in a Burr press release) to assert North Carolina’s right to the seat, on the grounds that their state is under-represented as measured by its population. Right now there are fifteen authorized seats on the appeals court in Richmond. Twelve of the seats are currently occupied: two by Marylanders, three by Virginians, two by West Virginians, one by a North Carolinian, and four by South Carolinians. There are two pending nominations, with William Haynes of Virginia nominated to replace a predecessor from Maryland, and Terrence Boyle of North Carolina nominated to replace a predecessor from the same state. Now North Carolina’s senators want the Luttig vacancy too, which would bring their state to parity with Virginia. Virginia’s senators, understandably, are loath to surrender the seat that, along with the Haynes appointment, would pull them ahead of all others in the circuit.
Tobias’s argument is strictly parochial, arguing that relinquishing the Luttig seat to the tarheels would be a “loss” for Virginia, and that a “long-standing Senate tradition” is at stake. But he fails to note that the Haynes nomination makes up for the supposed loss, and is equally a violation of the venerable tradition. And Tobias blames the “stubborn opposition” of past North Carolina senators such as Jesse Helms to nominees from their own state for the shortage of circuit judges of which Dole and Burr now complain. But of course that opposition led to the loss of presumptive North Carolina seats to other states in the first place—contrary to the tradition Tobias holds so dear. One direct transfer of a seat from a North Carolina judge to a Virginia judge occurred as long ago as the Johnson administration, when John D. Butzner, Jr., replaced J. Spencer Bell. And of the five new seats on the Fourth Circuit bench created in the last 22 years, none has gone to a North Carolinian. Two have gone to Virginians, one of them Luttig himself (some “tradition” that is, with one occupant so far!).
While it is easy enough to see that each circuit court should have judges who come from every state in its jurisdiction, it is hardly essential to count any particular seats as “belonging” to any particular states. This tells against the Warner-Allen side of the current dispute. But neither can it be essential that the states be represented proportionally, which tells against the Dole-Burr argument. Since most of the work of circuit courts is performed by three-judge panels chosen randomly, it must often happen that a case from a particular state is heard by three judges none of whom resides there. And in today’s mobile society, where someone “comes from” can be a pretty evanescent thing. Michael Luttig, after all, was born in Tyler, Texas and “became” a Virginian at some later time. Roger Gregory, a “Virginian” on the circuit bench who was recess-appointed to the most recent new seat by Clinton and reappointed by Bush, was born in Philadelphia.
Maybe President Bush can settle this interstate dispute in the Senate by inviting some worthy judicial candidate from, say, Illinois, to move east to Richmond and join the Fourth Circuit.