Commentary://March 30, 2023
//March 30, 2023
In April 1865, as Ulysses S. Grant and the Union army made their way into the Confederate capital of Richmond, fleeing rebel soldiers set fire to bridges and warehouses. That fire quickly spread out of control and torched huge swaths of Richmond’s downtown business district.
After the dust settled, only two buildings were left standing, including the U.S. Custom House, Post Office and Courthouse built in 1858. That building still stands today as the Lewis F. Powell Jr., U.S. Courthouse, where the 4th U.S. Circuit Court of Appeals hears matters arising from Maryland, Virginia, West Virginia, North Carolina and South Carolina.
The Powell Courthouse will soon welcome a new jurist to the bench. On Feb. 9, 2023, the Senate confirmed South Carolinian DeAndrea Gist Benjamin to join the 4th Circuit. After serving for more than a decade as a state court trial judge, Judge Benjamin is the first African American from South Carolina to be appointed to the 4th Circuit and only its second woman of color.
She fills the vacancy created by Judge Henry Floyd’s assumption of senior status, bringing the court’s complement of active judges to 14 — one shy of its full 15-judge bench. (There currently remains a Maryland-based vacancy following Judge Diana G. Motz’s assumption of senior status in late 2022; the president has not yet nominated a replacement.)
Benjamin’s confirmation to the 4th Circuit illustrates the continued evolution of the court as she becomes its fifth new judge in as many years. During the Trump administration, three judges took senior status (Judges Dennis Shedd, William B. Traxler and Allyson K. Duncan), making way for three Trump-nominated replacements (Judges Julius N. Richardson, A. Marvin Quattlebaum Jr. and Allison Jones Rushing, respectively). And in the first two years of the Biden Administration, two more judges took senior status (Judges Barbara Milano Keenan and Henry F. Floyd), making way for two Biden-nominated replacements (Judge Toby J. Heytens and Benjamin, respectively).
As a result, practitioners appearing for oral argument in Richmond may find themselves before a three-judge panel composed of “new” faces that weren’t on the court a few years ago.
What’s more, six more judges are eligible to take senior status (Chief Judge Rodger Gregory and Judges J. Harvie Wilkinson III Paul V. Niemeyer, Robert B. King, G. Steven Agee and Andrew Wynn), leaving the court ripe for further personnel changes. Judge Albert Diaz will become eligible to take senior status in 2025, but it is unlikely he will take that step for several years. That’s because later this summer Diaz will take over the leadership of the 4th Circuit from Gregory for a term that will last until 2030.
The senior status eligibility dates for the remainder of the 4th Circuit highlight the relatively young age at which many of them were appointed, particularly among those most-recent additions to the court: Judges Stephanie D. Thacker (2030), Pamela A. Harris (2028), Richardson (2041), Quattlebaum (2031), Rushing (2047), Heytens (2040) and Benjamin (2037).
The clearest example of the relative young age of recent appointees, Rushing has close to 25 years until she becomes eligible to take senior status. That path mirrors that of Wilkinson, who was appointed in 1984 at age 40, became eligible for senior status in 2009 and remains in active service. In fact, Wilkinson is among the longest-tenured active service judges in the country; out of nearly 800 active judges in the United States, only three have served longer.
The relatively young age of judicial nominees has been highlighted by another recent trend: the resignation of federal judges to return to the practice of law. Last year, Judge Gregg Costa of the 5th Circuit left the bench to go into private practice after 11 years on the bench, including two as a U.S. District judge in Houston.
Judge Paul Watford, who joined the 9th Circuit in 2012, recently announced his intent to resign for the same reason. The phenomenon is not limited to the courts of appeals; in February 2023, U.S. District Judge George Hazel left the bench in Maryland after nine years of service. All three judges were appointed by President Barack Obama between the ages of 39 and 45.
The 4th Circuit is no stranger to its members rejoining the bar. Former Chief Judge William W. Wilkins spent 27 years as a federal judge, including 22 years on the 4th Circuit, before retiring in 2008, and entering private practice in South Carolina. Former Judge Andre M. Davis likewise spent 22 years of combined federal service as a trial judge in Baltimore and on the 4th Circuit before his retirement in 2017 to become the city solicitor for Baltimore. Both former judges have appeared multiple times as advocates before their former judicial colleagues.
The circumstances that go into whether and when a judge will step back from active service are difficult, if not impossible, to predict. Although some presume that judges time their retirement or assumption of senior status based on which political party is in power, the factors influencing those decisions can be varied and personal.
Former 4th Circuit Judge J. Michael Luttig cited the unexpected opportunity to become general counsel to the Boeing Company when he abruptly resigned from the court in 2006 — though some have speculated Luttig may have been open to a new career path after being twice passed over by President George W. Bush for a nomination to the U.S. Supreme Court.
Of course, had Luttig remained a member of the federal judiciary, he likely would not have been thrust into the spotlight for his legal analysis of the vice president’s obligations at the joint session of Congress on Jan. 6, 2021.
In the end, senior status remains the most common way vacancies arise on the 4th Circuit. Indeed, 11 of the court’s 14 active judges filled a vacancy created by their predecessor’s assumption of senior status, and the remaining vacancy exists for the same reason.
Senior judges tend to retain the same responsibilities as the rest of their colleagues by continuing to sit on three-judge panels, write opinions and decide cases. As a result, even if a senior judge reduces his or her workload, the court’s judicial resources increase when their successor is confirmed.
No matter the court’s composition, the 4th Circuit has developed a well-earned reputation for collegiality. By tradition, after every argument at the 4th Circuit, the judges leave the bench to shake hands with counsel before they confer on the cases and have lunch together. Although the pandemic put those familiar practices on hold, advocates before the 4th Circuit should expect the court’s expressions of gratitude and well-wishes to continue in the future, whether the jurists are familiar or new.
Kevin Elliker is counsel in the issues and appeals practice at Hunton Andrews Kurth LLP in Richmond, Virginia. From 2019-2021, he was an assistant U.S. Attorney for the Eastern District of Virginia, and between 2021-2022, he served as an investigative counsel for the House Select Committee to Investigate the January 6th Attack on the United States Capitol.