The Court of Appeals for the Fourth Circuit is the federal appellate court having jurisdiction over Maryland,Virginia, West Virginia and North and South Carolina. It handles appeals from the Eastern District of Virginia, the venue preferred by federal prosecutors in many cases, including terrorism cases. The Fourth Circuit has traditionally been the most pro-government appellate court in the United States.
A series of retirements after the election of President George W. Bush, and his inability to fill most of the vacancies, left the the Fourth Circuit in a 5-5 split between Democratic and Republican appointments as of 2007. The Washington Post noted that Clinton-appointed Judge Diana Gribbon Motz is the leader of the left wing of this Circuit, and described the balance of power as follows:
- The 15-member court has lost several prominent Republican appointees. Two of Bush's nominees, bottled up in the Senate even when Republicans ran it, were withdrawn this year when Democrats took over. The president only recently submitted one additional nominee, triggering concern among some conservatives that an opportunity to keep control is being lost.
- "The White House has not moved with an urgency that is warranted by the situation," said Charles J. Cooper, a Justice Department official in the Reagan administration, who called the 4th Circuit's vacancies "an absolute crisis." He said Senate Democrats also deserve blame for blocking Bush's earlier nominees.
The 5-5 split in active judges on the Fourth Circuit means that there is unlikely to be a majority vote to reconsider en banc a panel decision on a politicized issue. The Bush Administration will typically have to accept the decision of the three-judge panel, which may (by chance) be 2-1 Democratic, or hope the U.S. Supreme Court agrees to reconsider its decision.