How Two Senators Molded a Court

By Peter Hardin, Times-Dispatch Washington Correspondent
Sunday, July 11, 2004 A1

WASHINGTON–When mourners gathered to bury Strom Thurmond, William W. Wilkins was one of five people invited to eulogize the South Carolina Republican and longest-serving U.S. senator in history.

Billy Wilkins, a former Thurmond aide, is chief judge of the Richmond-based 4th U.S. Circuit Court of Appeals. He enjoyed a long friendship with the 100-year-old senator and said he felt closer to Thurmond than anyone after his own parents.

The court’s three other full-time judges from South Carolina attended the funeral last year. They included Karen J. Williams, the court’s first female judge, whose father-in-law, a state senator, was close friends with Thurmond.

These judges reflect part of the huge personal stamp Thurmond applied to the 4th Circuit, in part because of his powerful role as Senate Judiciary Committee chairman between 1981 and 1987.

Another Southerner who recently left the Senate exerted strong influence in the opposite way: by obstructing nominees. Jesse Helms, R-N.C., teamed with GOP allies to block President Bill Clinton’s four nominees from Helms’ home state.

The two senators took great interest in the appeals court, which is one step below the U.S. Supreme Court, and helped shape its predominantly conservative lineup, scholars say.

With 13 full-time judges and two vacancies, the court hears appeals from Virginia, the Carolinas, West Virginia and Maryland, and it is effectively the court of last resort for all but a fraction of the cases it handles.

In the forefront of cases involving terrorism and enemy combatants, the court is considered perhaps the most conservative of 12 regional appeals courts nationwide. Two of its leaders have made a short list of potential Republican nominees to the U.S. Supreme Court.

Thurmond was a former segregationist whose long life, including more than 47 years in the Senate, left controversial legacies.

Eighteen months ago, Sen. Trent Lott of Mississippi had to step down as Senate Republican leader amid a firestorm over his favorable remarks about Thurmond’s segregationist campaign for president in 1948. More recently, Thurmond’s illegitimate mixed-race daughter told the world the secret of her patrimony.

Largely overlooked, however, is Thurmond’s giant impact on the 4th Circuit, despite his representing a small state.

Between 1981, when Thurmond became Judiciary chairman, and his retirement in 2003, he championed to the White House seven – or fully half – of the 14 judges seated on the court in that period, according to interviews by The Times-Dispatch and a review of Senate records and local news reports.

He helped increase the number of South Carolina judges from two to four as Congress expanded the court’s size. The Palmetto State today has 31 percent of the court’s active judges, compared with 15 percent of the circuit’s population.

“His singular influence on the court was simply extraordinary for any one senator,” said Elaine R. Jones, former director-counsel for the NAACP Legal Defense and Educational Fund and a Norfolk native.

Helms, too, retired in 2003. To some, the five-term senator was a conservative hero; to others, he was a race-baiting bigot. His impact also endures.

The 4th Circuit probably would be more moderate and would have had its first black judge well before 2001 had Clinton’s nominees been approved, according to court watchers. And the blocking of Clinton’s choices left openings for Republican President Bush to fill.

Presidents have the primary power to appoint federal judges. Yet the influence of Thurmond and Helms shows the interplay of personal politics and power in Washington’s shaping a court affecting millions of people.

* * *
Because of its decisions in high-profile cases, the 4th Circuit has been grabbing headlines:

* It allowed the government to seek the death penalty for terror suspect Zacarias Moussaoui while saying he may introduce evidence from captured al-Qaida leaders. Wilkins wrote the opinion for a three-judge panel.

* Another panel ruled that alleged Taliban fighter Yaser Esam Hamdi, who was born in the United States, can be held as an enemy combatant without access to U.S. courts. Wilkins and William B. Traxler Jr. of South Carolina were on the panel. But the Supreme Court disagreed last month, saying Hamdi was entitled to contest his detention “before a neutral decisionmaker.”

* In an opinion written by Williams, the 4th Circuit undercut the Miranda rights warning to a criminal suspect. However, the Supreme Court later affirmed the Miranda warning.

* The appeals court ruled in 1998 that the Food and Drug Administration did not have authority to regulate nicotine in tobacco products as a drug. The Supreme Court later agreed, in a defeat for the Clinton administration.

While the judges writing these decisions are not well-known, they hold lifetime appointments and are part of a lasting legacy of presidents and senators.

“People tend to look at politicians for the roads they built or the dams they got. The longer legacy may be the kind of people who were sympathetic with their positions [that] they got into power,” said political scientist J. David Woodard of Clemson University in South Carolina.

Because the last judge championed by Thurmond was seated in 2002, Woodard said, the late senator’s impact on the 4th Circuit could last for 15 to 20 more years.

Thurmond took the helm of the Judiciary Committee from Sen. Edward M. Kennedy, D-Mass., when factors converged to bring Thurmond extra clout.

Ronald Reagan won the White House in 1980 after pledging to name conservative federal judges. The Republican Party platform had supported selection of judges who believed in “decentralization of the federal government.”

And the Senate, which confirms judges, was in Republican hands for the first time in 25 years.

With federal courts resembling “a ship listing to the left,” Thurmond “was trying to rebalance the court from an ideological direction he didn’t agree with,” said Mark Goodin, a former Thurmond senior aide.

Thurmond always looked out for his state. A story circulated in Washington that he often would come up with a name of a possible nominee from South Carolina even before a newly deceased judge was buried.

And the White House needed him. Because of the array of bills before Thurmond’s committee, it helped Reagan’s White House to help the South Carolina senator, Goodin said.

When Reagan took office, the 4th Circuit had six judges appointed by Democratic presidents and four by Republicans. By late 1984, the majority had shifted. Today, Republicans’ appointees hold a 10-4 majority.

Thurmond was a former judge. He recommended to Reagan and to his successors judicial candidates whom he knew and had sized up for ideology and character, not always heeding party lines.

Wilkins had worked as an aide to Thurmond in 1970-71 and directed his re-election campaign in 1972. A Republican and state court prosecutor, Wilkins was Reagan’s first nominee for a judgeship to the U.S. District Court, a step below the appeals court.

Thurmond had “almost paternal affection” for Wilkins, according to Goodin. The senator supported him successfully for the chairmanship of the U.S. Sentencing Commission. He also backed Wilkins for nomination to the U.S. Supreme Court, without success.

Judge William B. Traxler Jr., 56, belonged to a family that was close to Thurmond, and he did campaign work for the senator in 1972 and 1978. He campaigned as a Democrat for a prosecutor’s job and later rose to a state judgeship.

Thurmond first recommended Traxler for the U.S. District Court. He championed him to Clinton for the 4th Circuit when Ernest F. Hollings, South Carolina’s Democratic senator, formally recommended Traxler.

Another judge with Democratic ties is Williams, 52. She was a schoolteacher and a trial lawyer before Thurmond recommended her in 1991.

Williams also was the daughter-in-law of Marshall B. Williams, a Democrat and close Thurmond friend who was then the president pro tempore of the South Carolina Senate. The two men had double-dated when they were younger.

“I always had to drive because Strom needed both hands in the back seat,” Marshall Williams, now deceased, was quoted as saying in “Ol’ Strom,” an unauthorized biography of Thurmond by Jack Bass and Marilyn Thompson.

Karen Williams won bipartisan support. “Be prepared for the Supreme Court,” Sen. Joseph R. Biden Jr., D-Del., told the cum laude graduate of the University of South Carolina Law School at her confirmation hearing.

A more controversial nominee was Dennis W. Shedd, 51, another former Thurmond aide. Shedd’s appointment drew fire from civil-rights, labor and faith groups because of some of his decisions as a district judge. But he was supported by Hollings and was confirmed in 2002.

Going back the longest with Thurmond is Senior Judge Clyde H. Hamilton, 70. He recalls dancing at then-Governor Thurmond’s 1947 inaugural ball and regarding Thurmond as a “striking and accomplished horseman” in their hometown of Edgefield.

Hamilton, who is semi-retired, worked for Thurmond in 1955 and helped raise money for three re-election campaigns. He was grateful to Thurmond.

“In my legal career, no one has done more for me and is more directly responsible for my being here today than Senator Thurmond,” Hamilton said at his swearing-in as a district judge.

Thurmond’s judicial appointments clearly fit both the senator and South Carolina’s “friends-and-neighbors” political culture, said political scientist Charles W. Dunn of Regent University in Virginia Beach.

“He’s picked local people with whom he is very comfortable, and the politics of the state are very comfortable,” said Dunn, who once taught at Clemson University.
“They’re not extremists. They’re not Helms extremists or Maddox extremists,” he said, referring to former Georgia Gov. Lester Maddox.

* * *

Clinton takes a swing at Helms over 4th Circuit judgeship politics in his new autobiography.

Helms “refused for years to allow the Senate to vote on a black judge for the 4th Circuit . . . even though there had never been an African-American on the court. And the Republicans wondered why African-Americans wouldn’t vote for them,” the former president wrote.

Years earlier, the senator had denied a similar charge by Clinton after Helms had exercised powers given to home-state senators to block or stall action on a series of Clinton nominees of both races.

A TV commentator in Raleigh, N.C., before he won election in 1972, Helms rose to international prominence. He collaborated in the Senate with Thurmond and became godfather of a Thurmond daughter. Helms didn’t shy from a battle, and his 4th Circuit fight was no exception.

He was angry that a protege tapped by President George H.W. Bush in 1991, U.S. District Judge Terrence W. Boyle, never got a hearing from the Democrat-controlled Judiciary Committee. Playing payback politics, he stood up for Boyle when Republicans ran the Senate later in the Clinton years.

Helms also sided with then-Chief Judge J. Harvie Wilkinson III of Virginia in advocating a 4th Circuit smaller than its 15 authorized seats. He sponsored a bill to eliminate two vacant seats; observers had expected both to be filled by North Carolinians.

Responding to critics, the senator denied that race played a part in his opposition to Clinton’s black nominees from North Carolina. He had backed one of them, Judge James A. Beaty Jr., for a lower-court post, Helms pointed out.

Nor was Helms alone in the fight. Sen. Orrin G. Hatch, R-Utah and chairman of the Judiciary Committee, attacked Beaty as soft on crime.

Sherrilyn A. Ifill, who teaches at the University of Maryland Law School, said Helms’ stance and other events during the Clinton years helped shape a perception of the court as a kind of icon of conservatism with a less-than-flattering image related to race.

It was during the same period that U.S. Chief Justice William H. Rehnquist led guests in singing “Dixie” at a sing-along of the 4th Circuit Judicial Conference in 1999.

That added to the perception of the [court] as being something of a throwback,” Ifill said.

Helms didn’t yield when Clinton administration officials floated a possible nomination deal including Boyle, or when the only judge from North Carolina died in 1999. From then until last year, the Tarheel State had no judge on the court, although it has the biggest population in the circuit.

To skirt Helms’ opposition, the Clinton White House chose to shift what many had considered a North Carolina seat to Virginia. Clinton nominated Roger L. Gregory, a black Richmonder and one-time partner of former Gov. L. Douglas Wilder.

The GOP-controlled Senate balked. To end a long impasse, Clinton made a rare recess, or temporary, appointment for Gregory. The president emphasized that the area covered by the court had the highest percentage of black residents of any circuit.

President Bush ultimately gave Gregory a lifetime judgeship and nominated Boyle, as Bush’s father had done. The younger Bush also appointed a second black judge, Allyson K. Duncan of North Carolina, in 2003. She had bipartisan support from her state’s senators.

The nominations of Boyle and another former Helms aide, Claude A. Allen of Virginia, have gotten bogged down in the Senate.

Maryland’s two Democratic senators have attacked the nomination of Allen, a conservative African-American, on the grounds that the seat should go to a Marylander.

Allen, deputy secretary for the Department of Health and Human Services, also has drawn criticism from liberal social groups and the NAACP for what they label as his extremist record.

Boyle, too, has compiled a controversial record. Democratic Sen. John Edwards of North Carolina has exercised his home-state prerogative to bottle up Boyle’s nomination.

Now Helms’ legacy is surfacing on the presidential campaign trail. Bush, in North Carolina last week, called Boyle an exceptional nominee. Bush portrayed him as among several being obstructed by Senate Democrats and took Edwards to task. Sen. John Kerry had announced a day earlier his choice of Edwards as his vice presidential running mate on the presumed Democratic ticket.

A Kerry spokesman retorted that Bush “is playing politics and stumping for judicial nominees who would roll back the rights and freedoms that make America great.”

There is a personal link between Boyle and Helms besides the judge having worked for the senator. Boyle married a daughter of Thomas F. Ellis, a Raleigh lawyer and political strategist who, with Helms, formed the Congressional Club to fund his Senate campaigns.

That is not why Helms continued to support Boyle over 13 years for elevation, according to a former Helms aide.

Boyle is “exceedingly qualified to sit” on the court, said Jimmy Broughton, a former Helms chief of staff. He also noted that Helms “is very loyal to those who work for him.”

Helms, who was chairman of the Senate Foreign Relations Committee, did not respond to a request for an interview. The 82-year-old recently was ill and hospitalized for a month.

* * *
President Bush has not sought to shrink the 4th Circuit. And the current chief judge, Wilkins, doesn’t embrace the smaller-is-better approach. He would welcome two additional judges to fill the court’s authorized strength of 15, he said in an interview.

Wilkins said, however, he did not think the court should be expanded beyond 15 judges. Just last week, and well after Wilkins was interviewed, Senate Judiciary Committee Chairman Hatch floated the idea of adding a Maryland seat to the court to resolve the impasse over Allen’s nomination.

The nominations of Boyle, Allen and Pentagon General Counsel William J. Haynes II are in trouble, so the existing vacancies may not be filled this year.

Haynes was chosen to fill the seat of Judge H. Emory Widener Jr. of Virginia, a Nixon appointee who intends to retire. But the Abu Ghraib prisoner-abuse scandal has brought fierce questioning about Haynes’ possible role. Senate Democrats want to grill Haynes about the part he played in drafting guidelines for interrogating detainees in Iraq.

Meanwhile, the court’s character and reputation are not likely to change soon.

Its leading intellectual heavyweights, Wilkinson and J. Michael Luttig of Virginia, were widely mentioned last year as potential Supreme Court nominees, but no justice retired.

The 4th Circuit has become a “hard, ideological right” court and the “conservative gold standard,” said Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst who has written about judicial selection.

At the same time, the court’s conservatism “parallels in many ways, especially in federalism cases, trends in recent years in the Supreme Court under Chief Justice Rehnquist,” said constitutional-law scholar A.E. Dick Howard of the University of Virginia.

Wilkins was unprepared to accept any kind of ideological typecasting of the court: If a close study were made of its rulings, he said, “I don’t think you’ll find there’s any type of ideology driving those decisions.”

As for those who label it the most conservative of the appeals courts, “it’s come from a few decisions that have gotten national attention. That label has become stuck,” Wilkins said. “Everybody has to draw their own conclusion from the opinions they read.”

Posted in My Work, Thu, 28/05/09